This weekend’s cold, snowy weather may have some Massachusetts residents dreaming of warm summer days complete with icy drinks and cool swimming pools. But before you pick up that shovel to break ground on your new backyard attraction, you may wish to consider your potential legal liability and plan accordingly. In certain situations, under what is known as attractive nuisance law, you may be held liable for the injuries that occur to children who come onto your property and are injured – even if you never invited or permitted those children to enter your property.
How Do Attractive Nuisance Laws Differ from Premises Liability?
Generally, a premises liability case is brought against a property owner who allows a dangerous or hazardous condition to exist on his or her property when a person who is lawfully on the property is injured by that dangerous or hazardous condition. The classic example of the premises liability case is that involving a shopper who slips and falls on a wet floor in the grocery store, injuring him- or herself. A successful premises liability case involves showing not only that a dangerous condition existed on the property that the owner should have known about and taken action regarding, but also showing that the injured person was lawfully permitted to be on the property.
Liability for an “attractive nuisance” is more stringent. An “attractive nuisance” is any artificial dangerous or hazardous item or condition on a person’s property that can attract children to trespass onto the property and suffer harm. While a swimming pool is a classic example of an attractive nuisance, ponds, streams, and even swing sets or jungle gyms can be considered attractive nuisances. A child who trespasses onto another’s property because of an attractive nuisance and who is injured by that attractive nuisance can be compensated for his or her injuries if:
- The place where the nuisance exists is a place where the landowner knows or has reason to know that children are likely to trespass (such as an unfenced pool area);
- The nuisance is one which the landowner knows or should have reason to know involves an unreasonable risk of death or serious bodily harm to a child;
- Children, because of their youth, are unlikely to realize the danger they are in by coming near the nuisance;
- The burden on the landowner of eliminating or mitigating the danger is slight compared to the danger presented to children; and
- The landowner fails to take reasonable measures to eliminate the danger or protect children.
How Can a Personal Injury Attorney Help?
As one might expect, establishing that a child was injured by an attractive nuisance and that the landowner should be held liable for the child’s injuries is a very fact specific inquiry. A personal injury attorney can help gather important evidence about the accident that can be helpful in establishing liability under the attractive nuisance law. If your child is injured because of a dangerous condition on the property of another, contact us right away at 508-755-7535.