Child Trespassers

A child trespasser is one who enters or remains upon the premises of another without any lawful authority, right, invitation, or license.  Usually, a trespasser enters upon another’s premise either for his/her definite purpose, or at his/her convenience, or merely as an indolent.  Sometimes, a child who is an invitee to a building can become a trespasser when s/he enters another part of the building to which s/he should not enter.

It is a well established principle that a person who owns or controls property owes no duty to a trespasser upon such property.  However, the owner of a property should not inflict any injury either willfully or recklessly upon a trespasser.  This rule is applicable to both children of tender years and adult trespasser in the same manner[i].  Therefore, the only duty that a landowner has towards a child trespasser is to refrain from willful or wanton negligence or misconduct.

A landowner is said to commit a wanton misconduct if[ii]:

  • s/he consciously performs any dangerous act; or
  • s/he omits to do his/her duty to refrain from imposing injury;
  • s/he has knowledge of the existing conditions in the land; and
  • s/he has knowledge that the performance of such act, or omission to perform the duty will result in an injury.

 

However, upon discovering a child trespasser’s presence, an owner or possessor of land owes the following duties:

  • duty to exercise reasonable, ordinary, or due care with regard to trespassing children;
  • duty to warn the child of any known dangers which s/he actually knows as existing on the premises; and
  • duty to prevent the children from dangerous artificial conditions.

 

The general rule of nonliability of owners to trespassing children is subject to limitations.  Accordingly, an owner or occupier of a premise actively and negligently engaged in the operation of hazardous machinery or other apparatus must exercise a high duty of care to a child trespasser.  Provided the danger involved in such operation must not be apparent to children.

In order to impose liability upon a land owner for injury caused to a child trespasser, the plaintiff must prove[iii]:

  • that the defendant had knowledge that the children are likely to trespass upon the premises;
  • that the defendant had knowledge that the dangerous condition involves an unreasonable risk of death;
  • that the dangerous condition is not one that can be discovered by the children;
  • that the defendants’ burden of eliminating the dangerous condition is minute; and
  • that the defendant failed to exercise a reasonable care.

 

However, the reasonable foreseeability of the presence of a child trespasser at the place of danger is a necessary prerequisite to impose liability upon the owner of a land, for injury to a trespassing child.

[i] Raney v. Roger Downs Ins. Agency, 525 So. 2d 1384 (Ala. 1988).

[ii] Smith v. Northern Ins. Co., 120 So. 2d 309 (La.App., Orleans 1960).

[iii] Brown by & Through Brown v. City of St. Paul, 1995 Minn. App. LEXIS 1459 (Minn. Ct. App. Nov. 16, 1995).


Inside Child Trespassers