A child invitee can be classified into two categories:
- public invitees; and
- business invitees.
Public invitees are those who enter as members of the public for a purpose for which the land is held open to the public. For example, a child who is injured on public property, such as a public park, is a public invitee. While business invitees are those who enter for a purpose connected with the business of a landowner. For example, a child who visits a store with his/her for shopping is business invitees[i].
Where a child who is a public invitee is injured, the local government responsible for the property will be held liable for negligence resulting in the child’s injuries. The liability of the government is based upon the principle that a local government which owns and operates a recreational facility has the same legal duty as that of a private operator of a similar enterprise. Therefore a local government should owe a reasonable care to protect its invitees, whether children or adults, from injury.
With respect to business invitees, the owner of the premises owes a duty to use reasonable care and diligence to keep the premises in a safe condition. In the case where the premises are in a dangerous condition, they must give sufficient warning to such invitees so that danger can be avoided by the use of ordinary care[ii]. Therefore, a merchant who invites the public to his/her store, knowing that children will frequently accompany their parents, is under a duty to extend to the child the protection of an invitee[iii]. The mere fact that potential danger on the premises includes risks that are inherent in a natural body of water will not take away the duty of a landowner to exercise reasonable care.
However, every young child who enters into the premises will not be an invitee. In order to determine whether a child is an invitee, the benefit test is adopted by the courts. Under the benefit test a child will be an invitee if s/he enters upon the land of another for the transaction of business or for any other purpose beneficial to the landowner[iv]. Hence, a child who is permitted by an employee having control over the premises to assist with the work on the premises or to perform some service thereon is an invite. However, a child who accompanies his/her parents to the workplace is not an invitee, if the owner or occupant does no have knowledge of the child’s presence.
Another test used for determining the status of a child who enters an owner’s premises is the invitation test. According to the invitation test a child who is upon premises on the express or implied invitation of the owner or occupant is an invitee[v]. However, a mere social invitation will not make a child an invitee.
Generally, a landowner owes the following duties to a child invitee:
- duty to protect children from injury;
- duty not to injure the child; and
- duty of reasonable or ordinary care.
The duty to protect children from injury carries with it the following duties:
- duty to discover dangerous conditions;
- duty to maintain the premises in a reasonably safe condition;
- duty to refrain from dangerous activity; and
- duty to warn children invitees of dangerous conditions.
However, the duty to protect child invitees from injury does not extend to cases where the risk of harm is apparent to the child[vi]. For example, a 12 year old child having experience in steering a flat-bottomed sled in a location where trees are present need not be warned of the risks associated with hitting trees while sledding. Here the landowner has no duty to warn the child about the danger on the premises or to prevent the child from such dangerous activity.
The quantum of reasonable care owed to a child is not the same as that owed to adults. Hence, children are entitled to care in proportion to their inability to foresee and avoid perils they may encounter. The land owners must exercise a higher degree of care for the children’s safety when compared to the safety of adults[vii].
A court while examining the reasonable care exercised by a landowner towards a child invitee shall look into the following factors:
- the age and ability of the child to understand danger;
- the peculiar attractions that certain conditions present to children;
- the landowner’s knowledge about previous attraction of the child to such condition; and
- childish impulses.
[i] Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me. 1971).
[ii] Armstrong v. Georgia Marble Co., 575 So. 2d 1051 (Ala. 1991).
[iii] Murphy v. Kelly, 15 N.J. 608 (N.J. 1954).
[iv] Osadchy v. Southern Methodist Univ., 232 S.W.3d 844 (Tex. App. Dallas 2007).
[v] Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 (Ga. Ct. App. 1969).
[vi] Gilmore v. Walgreen Co., 759 N.W.2d 433 (Minn. Ct. App. 2009).
[vii] Burdine’s, Inc. v. McConnell, 146 Fla. 512 (Fla. 1941).