As a landowner, you might wonder whether you need to be concerned about injuries that occur when someone trespasses on your property. Generally, trespassers enter your land at their own risk. Both common sense and the law acknowledge that you have “no duty to anticipate a trespasser’s entry or to provide for a trespasser’s safety.” Your only duty is to “refrain from acts which willfully, wantonly, or recklessly cause injury or death to trespassers.” To be clear, posting a sign warning that “trespassers will be shot” does not make it legal to harm someone.
However, there is an important exception known as the “attractive nuisance” doctrine. Despite the flashy name, attractive nuisance is better understood as “liability for artificial conditions that are highly dangerous to the safety of trespassing children.” Under this doctrine, a landowner may be liable to an injured trespassing child if:
- The possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children.
- The possessor of real property knew or should have known that children trespassed on the property.
- The possessor of real property knew or should have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children.
- The injured or killed child, because of their youth or tender age, did not discover the condition or realize the risk involved in entering onto the property or in playing in close proximity to the inherently dangerous artificial condition.
- The possessor of real property could have reasonably provided safeguards that would have removed the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.
Examples of attractive nuisance include an “insufficiently guarded swimming pool,” poorly guarded or defective trampolines, and a dangerous accumulation of junked cars. While not exhaustive, this list provides examples of artificial conditions that, if not properly safeguarded, could lead to liability.
As a property owner, it is crucial to implement protective measures such as installing locks or fences to prevent children from accessing dangerous conditions. If you have questions or concerns about your property or need advice on how to manage potential liabilities, please contact one of our experienced attorneys. They will be happy to assist you in ensuring your property is safe and legally compliant.
