Personal injury law can get a little complicated when it comes to issues of premises liability, especially when children are involved. Children are afforded certain extra legal protections against injuries on someone else’s property, under the assumption that they simply don’t know any better. Here’s what you need to know about premises liability for accidents involving children.
What Is Premises Liability?
Premises liability is the legal concept that holds the owners of a property (or a business) responsible for the well-being of visitors or customers. When a property owner fails in his or her duty to protect guests, it may be considered a form of negligence, and the injured party may be able to file a lawsuit to recover damages.
The level of duty that the property owner has depends on the nature of the visitor. The duty of care to customers of a business is higher than the duty of a homeowner to social visitors. For example, a mall or a private daycare with a playground has a greater responsibility of care than a homeowner with a swing set or other play equipment in the backyard.
When it comes to trespassing on property, an uninvited guest is rarely afforded any duty of care at all. The biggest exception to this rule is when children and an “attractive nuisance” are involved.
What Is an Attractive Nuisance?
Since children don’t have the same instincts for danger as adults do, a legal doctrine of the attractive nuisance was developed. A classic example of an attractive nuisance might be a swimming pool that’s easily visible from the sidewalk on the way to school, left unfenced or behind a fence that’s unlocked, climbable, or otherwise fails to prevent entry by a child. Other examples of attractive nuisances may include the following:
- Water fountains
- Dangerous pets or other animals
- Open pits, wells, and dangerous staircases
- Dangerous machinery, including lawn mowers or broken-down cars
- Swing sets, trampolines, and other backyard play equipment
The key to an object being classified as an attractive nuisance is whether or not it is liable to draw the eye of curious children, who are unable to fully understand the nature of either private property or the danger presented. Property owners who have items that could be considered attractive nuisances must take reasonable precautions to prevent use by children, and may be found liable for any injuries if they do not.
Proving an Attractive Nuisance Case in Court
There are multiple elements involved in demonstrating to the court that an item on a property is an attractive nuisance. Generally, the following must be shown in order to have a successful case:
- The property owner must have an expectation that a child might trespass on the property;
- The property owner must be aware that the object or feature could lead to injury or death;
- The property owner failed to take sufficient precautions to prevent access or injury;
- The child must be shown to not have understood the risks involved; and
- There must be actual damages (such as an injury or death) that resulted.
It’s also worth noting that the statute of limitations on a case involving a child injury is also different. For an adult case, the limitation is typically two or three years. In cases involving children, things change a little bit. While the child may pursue a personal injury suit until he or she is 19 years old, the parents usually only have two to three years to file a claim to recuperate medical costs related to the injury.
Get Legal Help
Premises liability and attractive nuisance cases involving children can be some of the most challenging cases, both legally and emotionally, but also the most rewarding when a suffering child and his or her family receive the compensation that they deserve. While no amount of money can make up for the pain and loss involved when a child has been hurt due to negligence, knowing that the medical bills will be taken care of and justice has been served can be a tremendous relief.
When you’re ready to talk to an experienced South Carolina attorney about your child’s injury, the Law Office of Kenneth E. Berger would like to hear from you. Call or email us using the contact form at the link on this page, or use the live chat box to schedule a free consultation today. We represent clients from cities all across the state, including Florence, Sumter, and Myrtle Beach.