Liability for Child Trespassers – Attractive Nuisance Doctrine

You may think that if a trespasser is injured on your property, it is not your problem. After all, why would you be liable for their illegal actions? Generally, that line of thinking would be correct. However, that is not the case when children are involved. Children are not always capable of understanding potentially dangerous situations. Because of this, the attractive nuisance doctrine makes a property owner liable for injuries to child trespassers when the owner maintains an artificial condition on his/her property that may be attractive to children.

The attractive nuisance does not apply to conditions that are common in nature. This includes bodies of water such as lakes, ponds, and streams. This is partly due to an assumption that children are presumed to understand the dangers associated with water because they are often warned of those dangers at an early age.
As mentioned, the attractive nuisance doctrine applies to conditions that are artificial and that are not found in nature. The applicable conditions must also be inherently dangerous or risky to children. Examples of these conditions include construction sites, machinery, and even trampolines.

What are the Elements of the Attractive Nuisance Doctrine?

The following elements must be met for the attractive nuisance doctrine to apply in Indiana:

1. the artificial condition must be maintained or permitted upon the property by the owner;
2. the condition must be dangerous to children and of such a nature that they will not comprehend the danger;
3. the condition must be particularly attractive to children;
4. the owner must have actual or constructive knowledge of the condition and that children trespass or are likely to trespass; and
5. the injury must be foreseeable.

If you could reasonably anticipate that children might come in contact with a dangerous condition or structure on your property, and that contact might inflict serious injury, you should take reasonable steps to protect potential trespassers against injury. Steps could include fencing in the property where the dangerous condition lies and posting “No Trespassing” signs.

Why Should I Care About This?

This may seem like an issue unlikely to apply to you, but the attractive nuisance doctrine could affect anyone. Has your house ever been under construction? If a child wandered onto the construction site and got injured, you could be liable for their injuries. Do you have a trampoline or a treehouse? Those conditions are very attractive to children, and you may be liable if a child trespasser gets hurt playing on them.

All in all, the attractive nuisance doctrine is something property owners should be aware of. If you have found yourself in a situation where your child has been hurt or you are being held liable for a child trespasser’s injury, contact McNeelyLaw today. Call us at 317-825-5110 to talk to an experienced attorney who can help navigate you through the complexities of your case.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.