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).