Generally, children should be given greater care than adults in situations where an owner or occupier of land has knowledge or has reason to know of their presence on the premises. The degree of care given to children should be in proportion to their ability to foresee and avoid the perils that may be encountered on an another’s land[i]. The liability of a land owner for injury to a child from his/her premises is determined with reference to the rules of ordinary negligence[ii].
The traditional rule determining the duty and liability of a landowner to children depends upon the status of the child such as whether the child is an invitee, licensee, or trespasser. This traditional rule was modified with the recognition of the principle of attractive nuisance. According to the theory of attractive nuisance, a possessor of land is subject to liability for physical harm to children trespassing thereon, regardless of their status as trespassers, licensees, or invitees[iii]. Hence, the only duty a landowner owes children who are trespassers is to not willfully or intentionally injure them.
Generally, the liability of a landowner with respect to a trespassing child depends upon[iv]:
- the landowner’s failure to take reasonable care against the foreseeable conduct of the trespassing child; and
- the need to balance the socially desirable policy of allowing a landowner to use the land in his/her own way against the humanitarian concern for the welfare of children.
Under the attractive nuisance doctrine, infliction of physical harm to trespassing children by an artificial condition upon land will make a land owner liable, provided the following conditions are satisfied[v]:
- that the possessor of the land had knowledge or has reason to know about the place where the dangerous condition exists;
- that the possessor had knowledge or has reason to know that children are likely to trespass;
- that the possessor had knowledge or has reason to know that there is an unreasonable risk of death or serious bodily harm to such children;
- that the children because of their youth are incapable of discovering the condition or realizing the risk involved in entering such dangerous area;
- that the burden on the part of the possessor in eliminating the danger is minute when compared with the risk imposed to children; and
- that the possessor failed to exercise reasonable care in eliminating the danger or otherwise to protect the children.
Apart from the attractive nuisance doctrine, some courts apply the conventional duty for determining the duty and liability of a landowner towards children, when physical harm to a trespassing child is caused by a natural condition upon the property. In such cases the conventional duty which an occupier owes to a trespasser is the only duty owed to the trespassing child[vi].
However, the attractive nuisance doctrine and conventional duty are not applicable in cases where one seeks to impose liability upon an occupier of property for the death of or injury to a trespassing child[vii].
Unlike liability to a mere trespasser, a landowner will be held liable to a licensee for certain dangers created by natural as well as artificial conditions on his/her property. Therefore, just like any case where a landowner will be liable to a trespasser child for physical harm caused by a condition on the land, the liability will also exist in cases where such child is an invitee or licensee[viii].
Where a child’s conduct constitutes a serious violation of the law and the injury suffered by the child is the direct result of that violation, the court will not entertain a suit for injuries. Likewise the primary responsibility of supervising and protecting children from injury rests with their parents or legal custodians. It is the duty of the parent’s to see that the child’s behavior does not involve danger to the child and that they do not violate the law. Hence landowners do not have a duty to warn or remove the children from danger where the dangerous nature of the premises is apparent.
[i] Lee v. Georgia Forest Products Co., 44 Ga. App. 850 (Ga. Ct. App. 1931).
[ii] Prince v. Wolf, 93 Ill. App. 3d 505 (Ill. App. Ct. 1st Dist. 1981).
[iii] Gregory v. Johnson, 249 Ga. 151 (Ga. 1982).
[iv] Christians v. Homestake Enterprises, Ltd., 101 Wis. 2d 25 (Wis. 1981).
[v] Bennett v. Stanley, 92 Ohio St. 3d 35 (Ohio 2001).
[vi] Slaughter by & Through Foster v. Moncrief, 758 So. 2d 1102 (Ala. Civ. App. 1999).
[vii] Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986).
[viii] Gilbert v. Sabin, 76 Mich. App. 137 (Mich. Ct. App. 1977).