Parents’ Guide to Attractive Nuisance Doctrine: Compensation for Children Injured While Trespassing

Learn when children and their parents are entitled to compensation for injuries caused by an attractive nuisance on someone else’s land.

Sometimes children don’t understand that playing on another person’s property is dangerous.

Children can be seriously, even fatally injured, because they were attracted to an unfenced pool or another hazard on someone else’s land.

Under most premises liability laws, the property owner isn’t responsible for injuries to trespassers.

However, most states have different rules when it comes to trespassing children, called the “attractive nuisance doctrine.” Under the attractive nuisance doctrine, an injured child and their parent have the right to seek compensation from the property owner.

Property Owner Responsibility for “Attractive” Objects

Under traditional premises liability laws, a trespasser cannot sue a property owner for injuries unless the property owner injured the trespasser on purpose.

In the late 1800s, lawmakers recognized that trespassing children deserve more protection than adults because most children:

  • Can’t understand the concept of trespassing
  • Don’t realize the harm that certain objects on someone’s property can cause

Lawmakers developed the attractive nuisance doctrine to deliver an added layer of protection for children. The doctrine says that a child trespasser can sue a property owner for injuries caused by an unsafe object on the land that “attracted” the child or lured them onto the property.

The attractive nuisance doctrine applies to residential and commercial properties, including construction sites.

Objects that can attract or lure children include:

  • Swimming pools
  • Trampolines
  • Ponds
  • Machinery with keys in the ignition
  • Uncovered wells

Example: Pond Owner Liable for Injured Child

Second-graders Jim and Kelly are playing one afternoon when they notice a neighbor added a small pond to their yard. The pond is filled with small fish, water plants, and a few large rocks. Jim and Kelly walk to the edge of the pond to take a closer look. Jim accidentally slips on one of the wet rocks and falls into the water, hitting and breaking his arm as he falls.

Here, Jim’s parents can pursue compensation from the property owner under the attractive nuisance doctrine. Jim is a child. Jim trespassed onto the property because of the luring nature of the pond, and he was hurt as a result. The negligent property owner should have tried to prevent injuries by posting signs or building a fence.

Every child’s injury case is different. Attractive nuisance laws are designed to protect those who can’t understand that a luring object is dangerous or don’t understand what could go wrong.

Property owners aren’t automatically liable, meaning responsible, for injuries to anyone underage. Children may deserve extra protection (or none at all) because of their age, learning disabilities, life experiences, or other reasons.

Example: Pond Owner Not Liable For Injured Teen

Let’s say Jim and Kelly are both high-school sophomores. Jim is a former Boy Scout, and Kelly works as a lifeguard in the summer.

Jim and Kelly are trespassing on the neighbor’s property. They decided to check out the neighbor’s new pond, and the rocks around the pond are wet and slippery. Jim slips and falls, breaking his arm.

Jim’s parents probably won’t get far with an attractive nuisance claim against the property owner. Both teens are old enough to know they had no business on the neighbor’s property.  Considering Jim’s education and experiences, he should have understood the dangers associated with a pond – especially slippery rocks.

Keeping Property in a Reasonably Safe Condition

Some states no longer apply the attractive nuisance doctrine. Instead, these states say that a property owner has to keep their property in a “reasonably” safe condition.

The property owner’s duty of care applies to both trespassers and non-trespassers alike. A property owner is liable for damages if they fail to keep their property relatively safe, and someone gets injured on their land.

On the other hand, the property owner might be off the hook if they made a reasonable effort to prevent injuries from happening on the property.

Whether an injury claim is settled with the insurance company or ends up in court, the state’s premises liability laws come into play. The details and facts of a case will show whether a property owner’s land is kept in a safe condition.

Common safety factors that an insurance adjuster or a jury will consider are:

  • Whether a fence was placed around a dangerous object or condition
  • The history of the land and whether similar prior injuries took place
  • The landowner’s actions in inspecting the property and treating a dangerous condition
  • The cost of removing the unsafe condition or object
  • How obvious the unsafe object was

California is one state that uses this approach.

Example: California Homeowner’s “Reasonable Care”

In California, property owners are generally responsible for:

“[A]n injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself…”

Carlos owns a small home and has a hot tub off a side patio. He keeps a lid on the tub whenever it’s not in use. Anyone inside the home can see the hot tub and a floodlight turns on at night to light up the patio.

A neighborhood boy sneaks onto Carlos’s property one night and bangs his head on the tub while trying to pull the cover off to get inside.

Carlos would not be responsible for the boy’s injuries because he took reasonable steps to make sure the area was safe – there was a cover, clear visibility of the tub, and the area was lit at night.

On the other hand, if Carlos kept his hot tub in an isolated area with no lights and no fence, and he rarely inspected his property, he could be liable for the boy’s injuries.

What Parents Should Do When Child Is Injured

There are several things a parent should do if their child gets injured in any situation that might be someone else’s fault. These apply to injuries sustained because of an attractive nuisance and to injuries caused by other circumstances. The most important considerations here are:

  1. Remain calm: Stress and anxiety increase whenever a person gets injured in an accident, and stress levels skyrocket when the injured party is a child. It’s critical for a parent to remain calm. A clear head is a smarter head and will make better decisions.
  2. Get medical help: Call 911 for emergency care, or take the child to a doctor or urgent care center as soon as possible. Tell the medical provider exactly when, where, and how the child was injured.
  3. Collect evidence: Parents are wise to gather important evidence like photographs and witness statements from the injury location and throughout the child’s recovery to help prove liability.
  4. Keep any paperwork: Parents should keep any documentation associated with their child’s care and treatment as well as any correspondence from the property owner or the insurance company.
  5. Contact an attorney: Never be afraid to consult with a personal injury attorney about the best way to protect your child’s interests.

Types of Damages for Children and Parents

Children, through their parent or guardian, can seek compensation for many of the same types of damages that an adult can seek in insurance claims and personal injury lawsuits.

When an attractive nuisance injures a child on someone else’s property, the child’s damage claim might include:

  • Medical costs, including future medical expenses
  • Rehabilitation costs
  • Loss of future income
  • Pain and suffering

When a child is fatally injured by an attractive nuisance, such as drowning in a swimming pool, the parent or guardian can file a wrongful death claim against the property owner.

The damages for a wrongful death claim are similar to those in a personal injury case. They may include:

  • Medical expenses
  • Funeral expenses
  • Loss of future income
  • Pain and suffering
  • Emotional distress

A parent may also be awarded “loss of society,” meaning an amount in compensation for the love and support the child would have provided to the family.

Child Injury Claims Can Be Complicated

Children are entitled to compensation for many of the same damages available to adults in personal injury cases. However, most states have special laws for settling minor (underage) injury claims that can get complicated.

For example, every state has a statute of limitations, meaning a deadline for injury claims. You must settle your injury claim or file a lawsuit before the statutory deadline runs out, or lose the right to any compensation for your injuries.

For adults, the statute of limitations starts to run on the injury date. In most states, the statute of limitations for a child’s injury claim doesn’t begin to run until the child reaches the “age of majority,” usually at 18 years of age. So, if the statute of limitations is two years, an injured child has the right to seek compensation until they’re 20 years old, no matter how old they were when they got hurt.

Representing an Injured Child

An underage child can’t legally settle their own insurance claim or file a lawsuit. A qualified adult can represent a child to resolve injury claims as their “Next Friend.”

Next Friend: An adult who appears in court in place of another party. The party being represented is usually a minor child or an incompetent person. The Next Friend for an injured child is typically:

  • A parent
  • Both parents
  • The child’s legal guardian
  • A court-appointed attorney

Don’t assume that you’re automatically your child’s legal representative. Some states require court approval for parents to serve as their child’s Next Friend. Talk to a personal injury attorney about the rules in your state.

Guardian Ad Litem: When a lawsuit is filed on behalf of a child, the court might appoint a Guardian ad litem (GAL) to represent your child in addition to the parent or the attorney hired by the parent. The GAL’s role is to protect the child’s best interests throughout the legal proceeding. The GAL does not answer to the parent or the parent’s attorney.

Compensation for Children and Parents

A child’s injury claim can settle after negotiations with the insurance company, or through an award in a lawsuit. In either case, most states require court approval to make sure the amount of compensation is fair for the child.

Getting court approval for a “minor settlement,” meaning a child’s injury compensation, is not the same as filing a lawsuit, but does require filing legal documents with the court. In some states, the judge will schedule a hearing, where the adults who represent the child and the insurance company’s attorneys will explain why the settlement is good for the child.

Parents are entitled to compensation for their child’s medical expenses, and can also seek compensation for their own emotional distress. The parent’s claims are often attached to the child’s lawsuit, or a parent can file a separate action.

Managing Child Injury Payouts

Unfortunately, children are injured every day because of an attractive nuisance, car accident, dog attack, or some other situation caused by someone else’s negligence. Get the help you need for your child’s injury claim.

Depending on the state’s rules and the amount of money involved, a child’s injury compensation is given to the parents, set aside until the child is at least 18 years old, or structured for periodic payment to provide for the child’s care.

Often, child injury compensation goes into a court-approved trust fund, interest-bearing bank account, or an annuity. You don’t have to figure it all out on your own.

It pays to consult an experienced attorney about your child’s injuries. The amount and management of settlement funds can affect your child’s eligibility for supportive services, including Medicaid, CHIPS, SSA, and more.

Most attorneys don’t charge for their initial consultation. It costs nothing to find out what a skilled personal injury attorney can do for your family.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>