When a property owner or occupier knows that children are on its property, the children are owed a greater duty than adults in the same situation are. Some common dangers on other people's property that are exacerbated when children are involved include unprotected swimming pools and animal bites.
Traditionally, ordinary negligence and premises liability rules applied to children. This means that courts will look at a child's status on the property in determining whether he or she can recover damages. A higher duty is usually owed to children who are considered "invitees" or "licensees" or social guests. In general, it is easier to prove liability when an injured child has been invited onto a property that contains a dangerous condition.
A lesser duty is usually owed to trespassing children. However, a property owner or possessor must warn children if it knows or should know children may be on the property. Moreover, the doctrine of attractive nuisance may apply to child trespassers who are injured on someone else's property.
Under the rule of attractive nuisance, whoever owns or controls a piece of property can be liable for physical harm caused to young children, even when the children have trespassed on the property. It is a defense based on the idea that those who maintain dangerous conditions that are likely to attract young children to come onto the property must be sensitive to potential dangers by posting a warning or taking other affirmative steps to protect children from the danger of the attraction. Usually, the court will not consider a natural condition, such as a creek, an attractive nuisance. To be liable, the owner or occupier must have created or maintained the hazardous condition.
A court will likely take a child’s age into account when considering whether the child could have appreciated the risk of harm.
The child or his or her parents will have to show actual or constructive knowledge of the hazardous condition, actual or constructive knowledge that children were likely to trespass, and actual or constructive knowledge that the hazardous condition carried an unreasonable risk of harm to children. They also must demonstrate that children would not be able to understand the risks presented, that the burden of eliminating the danger was small compared with the risk created for children, and that the owner or occupier failed to exercise reasonable care in eliminating the hazard.
For example, a child walking by on the street may find his or her way to a swimming pool in a condominium complex. The owner of the complex may owe a duty to put up a fence or cover the pool to avoid harm to children. Similarly, someone who works with machinery in his or her front yard may owe a duty to protect children from their attraction to the machinery by putting on safety locks or putting the machinery inside the house when not working on it.
Children generally have less responsibility for their own safety than adults, so long as they are not acting in serious contravention of the law.
Dangerous animals, or dogs not known to be dangerous, can present an "attractive nuisance." Many young children do not know how to behave around pets. They may provoke a dog without meaning to do so. If they were adults lawfully on the property, provocative conduct might be considered "comparative negligence," which is a defense in most states to dog bite lawsuits. However, comparative negligence is not likely to apply to very young children, such as those under the age of seven. Under the attractive nuisance doctrine, they may be able to recover for dog bites even if they were on the property illegally.
Where a child acts in serious contravention of the law, and the child suffers an injury directly as a result, the court will not permit the child to bring a lawsuit for injuries. For example, if a child tries to burglarize someone else's house and sees an obviously broken banister but thinks it would be fun to slide down the banister, the house owner may not have any liability. Moreover, the primary responsibility of supervising and protecting children from injury rests with their parents or legal custodians. Therefore, in most states, landowners do not have a duty to warn or remove the children from danger if the dangerous nature of the premises is apparent.