Can I Recover Damages for My Child’s Injury They Suffered While Trespassing?

(The Attractive Nuisance Doctrine)

In North Carolina, Premises liability is the theory of law that allows recovery of money damages when an unsafe condition on one person’s property injures another. For example, if you step into a deep hole in the concrete of your friend’s driveway, they could be held liable for your injuries. However, there are limits to premises liability. Certain factors, such as the victim’s being injured while trespassing, can absolve or diminish the property owner’s liability to the injured party.

The law of personal injury, or torts, recognizes that there are instances where the bar to recovery in cases of trespass could be unfair, particularly in the case of young children who can appreciate neither the laws of trespass nor the amount of risk posed by a dangerous condition on another’s property. This brings us to an interesting twist on premises liability law, the principle of the “attractive nuisance.” This doctrine makes a landowner liable in certain scenarios where the injury is caused by a dangerous situation that was likely to attract children who, because of their age, could not appreciate the risk that the condition posed—regardless of the fact that they were trespassing when they were injured.

The best-used examples of the attractive nuisance are that of the swimming pool and trampoline. Both can be inherently considered to attract children, regardless of whether or not a child would have to trespass to gain access. If either are not properly enclosed, the owner can be found liable for the child’s injuries. However, there are a number of other factors that must be proven first.

Factors of Attractive Nuisance

Factors that must be present in order for the doctrine of attractive nuisance to apply to hold the landowner liable for injury include:

• The landowner must have failed to use reasonable care. Just because a child is injured by an attractive nuisance on someone else’s property, does not necessarily mean that the doctrine applies. For example, if a landowner constructs a 6-foot fence around their pool and locks the gate, but a child climbs over the fence and falls into the pool, the landowner would likely not be held liable as their efforts to keep children out of the pool were reasonable.
• The landowner must usually have had constructive knowledge 1) of the dangerous condition, and 2) that children were or would be on the property. “Constructive” knowledge means that the owner knew or should have known.
  • For example, say an individual buys a house in a neighborhood with many young children, with a large tree in the backyard. The new owner learns that the former owner would allow the neighborhood kids to climb the tree whenever they wanted. Wanting to absolve himself from potential liability, the new owner tells all the kids that they are no longer allowed to climb the tree. Not long after, there is a lightning storm and the tree is struck. Six (6) months after the fact, some neighborhood kids decide to ignore the new owner’s warning and try to climb the tree, only to be injured when a branch, rotting since the lightning strike, snaps. In such a case a court would most likely find that the former owner should have known of the rotting limbs, i.e. had constructive notice, especially given the fact that the owner knew it was likely the children would try to continue climbing the tree.
• The child must be young enough. There is no set rule for “how old is too old” in attractive nuisance law, but the doctrine was created to protect “small children” who are “of tender age.” The older a minor is, the more difficult it can be to argue that attractive nuisance does not apply because the child was of the requisite age to understand the risk involved in their actions.
• The danger cannot have been a “common” danger. Attractive nuisance does not apply to situations that exist in nature. For example, if a child cuts their foot on a rock in a stream on the neighbor’s property, this would be considered a common danger for which the neighbor would probably not be liable. In such situations, it is considered the duty of the minor’s parent(s) or guardian to warn and guard the minor away from the common danger.
• The landowner must have been in control of the object or land that caused injury. A 2012 case from the North Carolina courts, Lampkin v. Housing Management Resources, demonstrates this. In Lampkin, a young child who lived at an apartment complex with her mother escaped through a hole in the complex’s fence and fell through the ice of a partially-frozen pond on the adjacent property. Even though the apartment complex owners knew about the hole in the fence and the dangerous pond nearby, the Court of Appeals held that they were not liable for the child’s injuries because they did not have legal control over, or ownership of, the pond.

As this article demonstrates, personal injury law is full of exceptions to rule, and exceptions to the exception. If you have a child that was injured on another person’s property in the Charlotte or Lake Norman area, or are sued for injury to another that occurred on your property, it is extremely important to speak with a skilled personal injury attorney right away. Arnold & Smith, PLLC is a civil and criminal litigation firm in Charlotte, North Carolina. Our experienced personal injury attorneys have years of experience in the local courts and stand at the ready to step in and assist with your case to ensure that your rights are protected. Contact us today for an initial consultation with one of our personal injury attorneys.

---