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  4.  | Child trespassers and the ‘attractive nuisance’ doctrine

Child trespassers and the ‘attractive nuisance’ doctrine

On Behalf of | Jun 7, 2021 | Personal Injury

Children can be both impulsive and innocent, which as many parents can attest can be a dangerous combination. For example, a person might have a swimming pool, trampoline or even an old shed filled with rusty tools that a child would like to explore even if they do not have permission. Sometimes these dangers cause the child to be injured, so Texas law treats child trespassers differently than adult trespassers.

Do I owe a duty of care to adult trespassers?

Under Texas law property owners do note owe a duty of care to adult trespassers on their premises. Thus, they are not liable for any injuries a trespasser suffers on their premises unless the property owner willfully, wantonly or through gross negligence caused the trespasser to suffer an injury.

What about child trespassers?

Child trespassers are treated differently under Texas law through the “attractive nuisance” doctrine. Property owners may be liable for injuries suffered by a trespassing child caused by a highly dangerous artificial condition on the land under the following circumstances.

First, the location of the artificial condition is one where the property owner knows or reasonably should know that a child would likely trespass there. Second, the artificial condition must be one that the property owner knows or reasonably should know existed and the property owner realizes or should realize involved an unreasonable risk to trespassing child of serious injuries or death. Third, the injured child, due to their young age, must not have discovered the condition or understood the risk involved with the condition. Fourth, the burden on the property owner of maintaining the artificial condition eliminating any dangers must be slight in comparison to the risk a trespassing child could be harmed. Finally, the property owner must have failed to take reasonable care to eliminate the danger or otherwise protect the child.

Learn more about premises liability in Texas

Children, due to their young age and immaturity, cannot appreciate potential dangers on a person’s property. They may simply see something that looks interesting or fun and go explore it to their detriment. For these reasons child trespassers are treated differently from adult trespassers who assumedly can appreciate dangers posed by being on a person’s property without permission. This post is for educational purposes only and does not contain legal advice. Our firm’s webpage on premises liability may be of use to those who want to learn more about this topic.

 

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