On 4/30, Jeff from Red Oaks Mill had a question about whether or not he should build an above-ground pool to make a back yard “oasis” when he knows that there are neighborhood heathens (aka, teenagers who like to trespass and drink beer in the woods – lions, and tigers, and troublemakers, oh my!) He really wanted to, but his very wise wife, was hesitant, afraid that they may be liable if one of the kids trespassed when they weren’t home and hurt himself in the pool.
My ruling? She is right! The bad news is, NY law has a special exception for “child trespassers”. While an adult can trespass – and injure him/herself on your property without liability to you (as long as you do not “booby trap” your property or purposely maintain a dangerous condition), it doesn’t work that way when children are involved. Property owners have a duty to children to avoid creating “attractive nuisances” – like a pool – without taking property precautions to ensure a child trespasser’s safety. Go figure.
The good news is, a property owner can guard against potential liability AND create the oasis of his dreams with a little forward thinking and ingenuity.
For starters, CONTACT YOUR INSURANCE CARRIER to make sure you have coverage in the event something were to happen. Next, put up conspicuous “No Trespassing” signs, and I suggest cameras (an expensive deterrent) or FAKE CAMERAS (a more affordable deterrent), because studies have shown that the presence of a “camera” deters would-be criminals. Next, TALK TO THE NEIGHBORHOOD PARENTS. Whether you believe “it takes a village” or not, the parents should WANT to guard against their little angels from getting hurt. And lastly, if you are a property owner who will be leaving your property for vacation, for example, get a house-sitter, if feasible, OR put your lights on timers (and sneak out under the cover of darkness!) so your neighbors THINK you’re home.
I know this sounds like a lot, but would you rather employ an ounce of prevention, or spend thousands fighting a civil suit when you get sued? There’s only one right answer…
Common attractive nuisances include swimming pools, trampolines, and construction equipment like cranes and backhoes. However, nearly any condition can be labeled an “attractive nuisance” if it lures in a child who then gets injured while playing on or around it.
In order to hold a defendant landowner liable for injuries caused by an attractive nuisance, the plaintiff must prove each of the following:
· The condition or object on the property is in a place where the landowner knows, or reasonably should know, that children may trespass;
· The condition is something that the landowner understands, or should reasonably understand, can kill or injure children who are trespassing on or near it;
· Because of their age, children cannot understand that the condition or object might injure or kill them if they interfere with it or get too close to it;
· The usefulness of keeping the condition or object and the burden of preventing children from getting at it are small compared to the risk the condition poses to trespassing children; and
· The landowner has not used reasonable care to prevent children from being hurt or killed by the condition or object.
In most courts, who counts as a “child” and what counts as using “reasonable care” to keep the child away from the attractive nuisance depends on the specific facts of each case. Toddlers and very young people will almost always count as “children,” whereas a person who is ten or twelve years old may or may not count as a “child” in these particular circumstances.
Likewise, the “reasonable care” used to keep children away from the attractive nuisance must take into account the ages and abilities of the children most likely to trespass on or near the condition. For example, posting a sign that says “Warning: Deep Water. Stay Away” may be reasonable if the trespassers are able to read, but it may not be enough to protect toddlers and very young children who cannot read or understand the sign.
In most cases, if a child of the same age and developmental stage as the injured child could understand the danger involved, the attractive nuisance rule will not apply. This standard is similar to the altered standard of care for minors in negligence cases.
In the past, most courts required the plaintiff to prove that the attractive nuisance is in fact what lured the child onto the property in the first place. For example, a child who cut through his neighbor’s backyard because he wanted to go to their swimming pool was lured to the attractive nuisance, but a child who cut through the yard to get to school and happened to encounter the pool on the way was not. Now, however, most courts will hold the landowner liable if the injury to the child was foreseeable, regardless of why the child entered the property in the first place.
Attractive nuisances are an exception to the premises liability rule of trespass, which usually holds that a property owner is not responsible if a trespasser gets hurt, as long as the property owner doesn’t do anything to make the property more dangerous than it is normally. In an attractive nuisance case, however, the property owner may be responsible even if the child is trespassing.