In most cases, property owners owe very few duties of care to a trespasser on their property. This does not mean that an owner may never be held liable for injuries that trespassers suffer. Of course, the property owner has a duty not to deliberately harm a trespasser.
There is another legal theory, called the attractive nuisance doctrine, that may make an owner responsible for injuries that children suffer on their property. If your child has been harmed in an accident in North Carolina, call the Wilmington premises liability lawyers at Horton & Mendez to learn more about the legal process for financial compensation in your case.
The Legal Theory Behind the Attractive Nuisance Doctrine
Generally, property owners in North Carolina will owe some type of duty of care to those whom they allow or invite onto their property. The usual duty of care is to keep the property reasonably safe and to warn about or fix any concealed dangers that invitees or licensees cannot see.
The same does not apply to a trespasser who enters the property at their own risk. There is no duty whatsoever to protect them from harm.
However, the law also contemplates that curious children may not have the judgment to protect themselves from dangerous conditions. In other words, there is a built-in assumption that “children will be children.” The law believes that children who may have access to anything that can harm them may not be able to stay away from it. The attractive nuisance doctrine takes away some of the property owner’s rights in favor of the safety of children.
Examples of Attractive Nuisances
There are numerous dangerous conditions on a property that can attract children, including:
- Swimming pools
- Wells
- Playground equipment
- Construction equipment
- Toys
- Abandoned cars
The Elements of an Attractive Nuisance Case
While we have listed common examples of an attractive nuisance, there are several elements that you must demonstrate that something meets the definition:
- There is a dangerous condition or object on the property that has the potential to cause harm to others.
- The condition or object can be appealing to children.
- The child is not able to assess the severity of the danger on their own.
- The owner left the area of the dangerous condition unsecured, such that a child was able to access it.
- It was practicable to secure the area and prevent the child from entering.
You have the burden to prove each of these attractive nuisance elements.
When there is an attractive nuisance, the owner takes on an additional duty of care. They must take reasonable measures to secure the area. Then, the property owner will be judged by what they did or did not do. They cannot simply point to a child as a trespasser to whom they owed no duty of care.
The property owner must assess their property from the vantage point of what may be attractive to a child. While it may be difficult to look at their own property through the eyes of a child, they should err on the side of caution to protect everyone involved. They should consider adding precautions, such as a fence or cover to an area. For example, if there is a swimming pool, they should build a fence around it or make sure that the pool is covered at all times. If they can possibly remove a dangerous condition, they should consider doing so.
Exceptions to the Attractive Nuisance Doctrine
Like everything else in personal injury law, an attractive nuisance is subject to a reasonableness limitation. A property owner does not need to take extraordinary measures to secure an area. For example, if they build a moderately high fence around the area, and the child still managed to scale it, the owner may not be responsible.
The attractive nuisance doctrine is also based on a sliding scale, depending on the child’s age. Older children are deemed to have better judgment and are able to make more rational decisions. What may be an attractive nuisance to a young child may not be one to a teenager.
In addition, the child may also be expected to exercise some reasonable degree of their own care based on their age. The owner could argue that the child was partially (or completely responsible) for their own injuries.
Finally, reasonable minds may disagree on what could be considered an attractive nuisance. Even the things on the list above may not be an attractive nuisance based on the facts of the situation.
How an Experienced Attorney May Help You
Proving an attractive nuisance is a very factual exercise. You would need evidence of the actual condition of the property at the time of the accident, which may not be easy for you to compile on your own. Much of the work is in gathering the evidence that you need to show that the normal rules for the duty of care owed to a trespasser do not apply.
Then, you would need to deal with an insurance company that may be intent on shifting blame or underpaying a claim. Proving liability is only the first part of your challenge. You must then negotiate adequate compensation that fairly pays for the injury to your child.
All of this would be difficult for you to handle. It is even harder when you are trying to care for an injured child. Our attorneys at Horton & Mendez handle the details so you can focus on your family and obtain the best possible legal result in your case.
Contact a Wilmington Premises Liability Lawyer Today
If you or your child has been injured on the property of another, you may have a legal cause of action. First, you need to contact an experienced attorney to investigate and review your case. Horton & Mendez has a track record of success on behalf of our clients of all ages, working to deliver results. The first step you should take is calling us today at 910-405-7751 or sending us a message online to schedule your free initial consultation.
