When a Child is Hurt, the Attractive Nuisance Doctrine Can Impact the Outcome of a Premises Liability Case

Most adults understand that they’re not supposed to go on someone else’s property without permission. When you’re there without the owner’s approval, you are trespassing. And trespassing is illegal.

In Texas, trespassing is a crime. But, in addition to criminal penalties that can apply, trespassing carries consequences in civil law as well. If you get hurt while trespassing on another person’s property, the owner will probably not be held liable for your injuries. However, there is an exception that applies in certain situations involving a child’s trespass.

If a child is hurt while on someone else’s property, an attorney may be able to use the doctrine of attractive nuisance to obtain compensation for the child’s injuries. To understand how this concept operates, it is helpful to consider the general rules of premises liability.

Responsibilities of Property Owners—Premises Liability

Texas law imposes certain obligations on property owners. They need to pay taxes on their property, of course. And when owners open their property to the public, they must take reasonable steps to keep it safe. 

For instance, if an owner opens a restaurant on the premises, the owner should not install a trip wire at the door that causes customers to trip and fall as soon as they walk in. In fact, the owner has a duty to inspect to make sure that no one else has set up a trip wire or anything else that could cause someone to get hurt. If there were a hole in the floor, for instance, the owner would need to put up a barricade or take other effective action to keep customers from falling into it. If the owner doesn’t take appropriate steps to safeguard the customers, then the owner can be held responsible for any injuries suffered by those customers under the concept of premises liability. The owner has a duty to keep the premises safe for patrons invited in because they may provide a financial benefit to the owner.

If someone comes into the restaurant not as a customer but as a salesperson hoping to interest the owner in buying new kitchen equipment, that salesperson is not really there for the property owner’s benefit. The owner might allow that salesperson on the premises, but the owner has not invited them in. That tolerated visitor is legally referred to as a licensee. 

The owner doesn’t have the same obligation to ensure the premises are safe for a licensee. If the owner knows there’s a trip wire or other hazard, the owner must remove it or warn the licensee visitor of the danger. But if someone creates a problem and the owner doesn’t know about it, the owner might not be liable if the salesperson gets hurt because of it.

If, after closing hours, college students sneak into the restaurant because they heard it was haunted, those students are not invited as customers or tolerated as licensees. They are trespassing because the property owner doesn’t want them there. And the property owner can’t set a booby trap that could harm trespassers, but other than that, the owner has no duty to keep trespassers safe from holes in the floor or other hazards.

These oversimplified examples illustrate the different obligations that property owners have under premises liability law. Sometimes the owner is liable when a hazard causes a person to get hurt, and sometimes the owner is not liable, and the status of the person who is hurt can make a big difference.

But the doctrine of attractive nuisance can completely change the rules.

Attractive Nuisance

Although trespass rules make sense to adults, they are often a complete mystery to young children. Young children may have no idea about boundaries and where they are legally allowed to go.

So, when a property owner has something on their property that might attract a child to come explore or play, the law requires the owner to take steps to ensure that children won’t get hurt. This is the doctrine of attractive nuisance—if a feature on the property would attract a child who could be injured, the property owner is liable for those injuries unless the owner has taken appropriate steps to prevent injuries to trespassing children. Putting up “no trespassing” signs would be enough to warn adults, but not enough to protect children.

The doctrine generally applies only when the feature that attracts children is man-made rather than a natural one, such as a hill. To be liable for an attractive nuisance, the property owner should be reasonably expected to know that children are likely to trespass and come in contact with the feature that could harm them. Examples of things that could be considered an attractive nuisance include:

• Swimming pools
• Trampolines
• Tree houses
• Construction equipment
• Artificial ponds and fountains
• Appliances
• Old vehicles

When this type of feature is on private property, the owner should be taking steps to keep children away, such as erecting a fence. If a property owner fails to put protective measures in place, the owner can be held liable for injuries a child suffers due to a dangerous feature on the property. An injury attorney can help the family of a child injured or killed by a hazard, such as an unsecured swimming pool, receive justice and recover compensation for pain, suffering, medical bills, and more.

Justice for Injuries Caused by a Property Owner’s Negligence

Property owners have a special obligation to protect children from harm, but they also have obligations to adults. Any time the owner or manager of a property fails to do what is necessary under the circumstances to prevent people from getting hurt, the owner can be held liable for injuries that result. But it takes the right evidence and legal reasoning to build a case for optimum recovery in a premises liability case in Texas. Not every attorney is prepared to succeed.

DeKeyzer Law fights for injured individuals and their families when a property owner’s indifference to safety allows injuries to occur on their premises. For a free discussion to learn more about how we could assist in your case, call us at 713-904-4004 or contact us online today.