The purpose of this legal doctrine is something we can all get behind. . . the protection of children. Essentially, the law accepts the fact that children are going to trespass and that there are certain artificial conditions which encourage them to do so. Should those conditions be present, the trespassing child will not be treated as a trespasser and the owner of the property owes the trespassing child a higher standard of care than he/she would owe an ordinary trespasser.
This legal concept imposes a duty of ordinary care upon a landowner with regard to a trespassing child. The Court will not impose this duty unless:
1) The owner knows, or should know, that children are likely to trespass
2) The owner knows, or should know, of hazardous conditions to children
3) The child, by virtue of youth, does not discover or recognize the hazard
4) The benefit of maintaining the condition and the burden of eliminating the risk is slight compared with the risk the condition poses to children; and
5) The owner failed to exercise reasonable care in protecting children from the risk
While this appears to be a difficult burden to satisfy on paper, in practice the cases are much more clear-cut. Nonetheless, doctrine generally does not apply to things like ponds, creeks, other natural water hazards or fallen trees. However, it does apply to swimming pools, swings, basketball hoops etc.
If your child, or a child you know, has been injured on someone's property, the owner of that property may be liable for the injuries. You should consult with an attorney. Please visit my website at http://www.carnellfirm.com. Email me at email@example.com or call me at 770-729-4809.
- Jason Carnell