Child Trespassers – Are You Liable For Injuries Under Louisiana Attractive Nuisance Doctrine
A couple of years ago, 5-year-old Renee Thompson drowned in a Metairie swimming pool in the backyard of an abandoned home. This tragic death sparked plenty of debate about who is responsible for the loss in such a terrible situation. Thompson passed away at a vacant home, yet some were quick to blame her parents for failing to monitor her activities.
The little girl walked through the vacant home’s broken gate, ventured into the backyard and fell in the pool. Therefore, some argue it is the child’s fault. Others insist the homeowner has some liability. Let’s look at the concept of attractive nuisance in the context of the law to help clear up liability issue pertaining to such unfortunate child trespassing incidents.
There is no specific law that states one must secure a swimming pool or other such space at their private residence. However, if a lawyer can prove a property owner acted in a negligent manner and this negligence caused the victim’s injury, pain or death, there is a chance for successful litigation.
The law is very specific about attractive nuisances. If a homeowner acts negligently in terms of maintaining such an attractive nuisance, a judge can find them guilty. Further, the owner could suffer a financial loss. Examples of attractive nuisances are swimming pools, jungle gyms and areas of construction. These are all places in which little ones are likely to want to explore, wander around, and possibly hurt themselves.
It is important to distinguish between adults who venture onto another person’s land in the act of trespassing and kids who wander waywardly. Children typically wander onto another person’s land in response to something that attracts them. Any such thing that can be considered as attractive to a youngster makes the court consider this wayward little wanderer as an innocent party as opposed to a trespasser.
In the end, the case will come down to whether a lawyer can prove that the homeowner acted in a negligent manner. If it can be proven the homeowner made it possible for the child to wander onto the property and pursue an attractive nuisance, he or she can be found guilty and must pay considerable damages.
The Issue of Homeowner Negligence
In the Metairie child death example cited above, the pool in question was unsupervised. No one lived at the residence. The gate between the front yard and the pool was broken. The lack of supervision combined with the broken gate make some argue the homeowner acted in a negligent manner.
It is awfully difficult to make the argument a 5-year-old child acted in a negligent manner by wandering around unsupervised land. The bottom line is if a lawyer can prove the property owner acted in a negligent manner, it is possible for him or her to suffer a massive financial penalty.
When it comes to responsibility for incidents involving child trespassers, some point the finger to the parents of the little ones in question. The close supervision of children is one of the better ways to prevent these tragic accidents. In the context of a civil suit the jury might consider the child’s parents’ comparative fault.
However, there is a good chance the assignment of guilt will be fall among multiple properties. After all, if no one is around at the time of the accident, it is awfully difficult to determine exactly what happened. Though spreading out the guilt across several parties reduces each’s potential damages to pay, it does not fully relieve the property owner of liability. Parents might be found partially liable, yet parents can only be faulted to a certain extent as they cannot keep a watchful eye over their kids 24 hours a day, 7 days a week.
The Elements of the Attractive Nuisance Doctrine
Courts typically mandate five distinct elements are present for the attractive nuisance doctrine to be applied. The first element is the presence of a condition that exists that was dangerous and likely to spur injury to those who contact it.
The second element is that the space in question was attractive to the point that it entices young children. The child must have been incapable of determining the level of the danger of the situation. The space or item must have even left unguarded and available in a position where children might be. Furthermore, it must have been reasonably feasible and practical to prevent the child from accessing the area.
The bottom line is anyone who owns property should be proactive to limit potential liability. Take a close look at the property. If there is any portion that seems attractive to children or appears to be an area for explorations, add safeguards.
As an example, up righting a fence has the potential to block a wayward child from venturing into your pool. It will also help to block kids’ view of the interesting aspect of your property. Whether it is a swimming pool, a fire pit, or anything similar, they are likely to capture the attention of youngsters. It even makes sense to put up warning signs. If you implement all the preventive measures, it will be that much easier to prove you fulfilled your duty to strangers who venture onto your property.
Examples of Attractive Nuisances
It is not only swimming pools that qualify as attractive nuisances. Though pools are the most obvious example of an attractive nuisance, there are plenty of other spaces, sites and attractions that meet the definition as well.
As an example, something as simple as machinery that can harm a wayward child qualifies as an attractive nuisance. Property owners should conceal such machinery or even put it away, so children do not find themselves drawn to it. Building materials stacked on one another also qualify as attractive nuisances. Wells, tunnels, and even dangerous stairs and rooftops are also examples of attractive nuisances.
Provided the property owner creates or maintains the space or object deemed harmful, liability for expenses related to the injury can fall on the owner. It is interesting to note many courts limit what qualifies as an attractive nuisance. They do so in accordance with whether it is likely to entice a child onto the property. Some courts mandate the object in question be man-made require maintenance as opposed to something natural such as a pond.
In general, the law assumes children understand the basics of some dangers such as touching fire, falling from a high position, etc. It is up to the property owner to assume the child in question will venture to any part of his land. If the owner does not take proper precautions and an attractive nuisance is on-site, he or she will face legal liability in the event of an injury or death.
The Perspective of Pool Owners
Those who have a backyard with a swimming pool or anything else that qualifies as an attractive nuisance should not panic. Be extra careful if you know kids are in the neighborhood yet do not dwell on potentially negative outcomes. Make sure the gate leading to the backyard is in excellent shape. Block off any other accessible paths to reach your swimming pool or any other potential safety hazard on your property. Exercise common sense always.
Provided you act in a rational manner by taking logical actions such as covering your swimming pool when leaving the property for an extended period, you will have your legal bases covered. So, do not freak out just because you own a swimming pool. Be mindful and you will not have to worry yourself sick about liability issues.
Fulfill Your Duty
In the end, landowners have a duty to everyone who is on their property. The duty level owed to an individual on the property hinges on the guest’s status. The duty level affects the property owner’s potential liability. An invitee deserves the highest duty to guard against harm.
Licensees are individuals who enter land by way of the possessor’s consent. Trespassers are regarded as the lowest of those on another’s land. Landowners have no duty to trespassers but to not cause injury to him or her.
Contact Our Injury Attorneys Today
If you have suffered injuries and suspect another party is partially at fault, we can help. Meet with our legal team at Mike Brandner Injury Attorneys and we will explain attractive nuisance in-depth, help you understand your legal options and ultimately strive to obtain the compensation you need and deserve.
Furthermore, if anyone has injured themselves on your property and you have concerns about liability, we can help clear your name. Give us a call at (504) 345-1111 to schedule an appointment. Our hours are 8:00 a.m. – 5:00 p.m. yet we are willing to field your call 24 hours a day, 7 days a week. You can also reach us through our website’s convenient LiveChat option. Consultations are completely free. There is no fee unless we win your case.
The information on this blog is for general information purposes only. Nothing herein should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.