Facts/Local legend:? There is a fountain on the front lawn of a property with a red front door. People have said that the fountain is actually a wishing well. Local children (and some adults)

What are Premises Liability Laws for Residential Property Owners?

Every owner of residential property has an obligation to ensure that their land and home are reasonably

safe for anyone who is invited to or visits the premises. Residential property refers to all sorts of real

estate, including homes, townhouses, and condominiums.

Thus, if you are the owner of residential property and a person gets injured either in your home or on your

land, then you may be held liable for the harm or losses suffered by the victim. This type of responsibility

is known as “premises liability.”

Premises liability laws refer to the rules which govern residential homeowners’ liability for personal

injury. These types of claims are usually based on a tort law theory of negligence and may vary

depending on the jurisdiction and facts surrounding an individual case.

What are the Laws Regarding Premises Liability?

Specifically, the concept of premises liability is governed by the laws and procedures of the state where

the injury occurred. In some states, the court may focus on the legal status of the individual. In other

states, the court might focus on the condition of the property, as well as the activities of both the owner

and the visitor.

In general, a court will consider numerous factors when determining whether or not to hold an owner

liable for an injury, such as:

• The condition of the property (e.g., was it properly maintained, or did it need a lot of repairs?);

• The legal status of the individual visiting the property (i.e., was the person an invitee, licensee, or

trespasser?);

• Whether both the owner and the visitor are at fault for the injury;

• The circumstances under which the visitor entered the property (for example, was the person a

social guest, or were they attempting a rescue like a firefighter or police officer?);

• How the property is being used;

• Whether the accident or injury that occurred was foreseeable or not?

• Whether the visitor to the property was an adult or a child;

• Whether the owner’s efforts to fix a dangerous condition or to warn visitors of a dangerous

condition was reasonable;

• Whether the owner knew or should have known about a particular condition on the premises (e.g.,

was it hidden or obvious?).

What are the Different Kinds of Duties for Property Owners?

Owners of either type of property (e.g., residential or commercial), have certain duties towards other

individuals who are on that property for a particular reason. In some states, the type of duty that an owner

has to others may depend on who the person is on their property.

In general, there are three major categories of people covered by the rules found under premises liability

laws. This includes the following categories:

• Invitees: Invitees are people who visit an owner’s premises for the purposes of conducting

business (e.g., a customer in a store), and they are owed the highest duty of care under premises

liability laws.

o Although invitees are most frequently found in commercial buildings (as opposed to

residential), there is always the possibility that a person might engage in a business

activity from their home and as such, will invite other individuals to their home for

business related reasons.

▪ Therefore, even those who visit a residential property for business purposes can

be classified as invitees. If invitees are invited to an owner’s premises, then the

owner is required to inspect their premises regularly for any potential dangers.

They also must either make their premises as safe as possible, or warn any

invitees about any potential dangerous conditions.

• Licensees: People who come to a person’s residence for non-business related reasons are known

as licensees. They are usually there with the owner’s permission and for the mutual benefit of

both the guest and the property owner.

o An example of a licensee would be a neighbor that you invite over for a cup of coffee.

Owners owe persons who are classified as licensees an intermediate level of duty. An

owner either must make their residence as safe as possible, or warn licensees of any

potential dangers on the premises that they know or should reasonably know about.

▪ Note, the duty to warn licensees does not extend to obvious defective conditions,

such as a large hole in the steps leading to an owner’s front door.

• Trespassers: These are individuals who enter onto an owner’s property without their permission

(and usually without an owner’s knowledge). Although it will depend on the laws of the state and

the type of trespasser they are classified as (i.e., unknown trespasser versus anticipated

trespasser), owners owe only a very minimal duty to them.

Attractive Nuisance Doctrine

A doctrine in tort law under which a landowner may be liable for injuries to children who trespass on land

if the injury results from a hazardous object or condition on the land that is likely to attract children who

are unable to appreciate the risk posed by the object or condition.

A child’s curiosity leaves him or her open to learning and new experiences, but it also leaves the child far

more vulnerable to placing himself or herself in dangerous situations. When an adult enters someone

else’s property without an invite or permission, he or she is trespassing in the eyes of the law, and if

injured, the adult is unlikely to have a legal leg to stand on.

When the so-called trespasser is a child, however, it’s a somewhat different situation. The attractive

nuisance doctrine helps to protect children in this situation by holding the property owner or manager

liable if all the following apply:

• The child’s injuries were caused by an artificial (not naturally occurring) danger on the property

that is known to or likely to attract children who can’t adequately appreciate the inherent risk

associated.

• The property owner or manager could have or should have foreseen the child’s attraction to the

danger.

• The property owner recognized or should have recognized that the attractive nuisance in question

posed an inherent danger to the child.

• The benefit of keeping the attractive nuisance and the burden associated with eliminating its

danger (for the property owner or manager) was slight in comparison to the level of risk

experienced by the child.

• The property owner or manager failed to employ reasonable care in his or her efforts to remove

the danger in question.

Are Landowners Responsible for Injuries to Trespassers?

In most cases, a landowner does not typically have a duty to make their land safe or warn trespassers

about hidden dangers on their property. However, there is an exception for children. Since children are

known to run amuck and rarely do as they are told, the law foresees that a child may become a trespasser

if they see something that looks fun to interact with on someone else’s private property.

In tort law, this concept of an object tempting a child to trespass onto someone else’s private land is

known as the attractive nuisance doctrine.

What Is an Attractive Nuisance?

An “attractive nuisance” can refer to anything from a pool to a trampoline to even construction

equipment. Basically, any object that can tempt a child to enter someone else’s land as an uninvited

trespasser may qualify as an attractive nuisance.

In the past, tort law only used to require landowners to warn trespassers of artificial dangers, such as

animal traps. However, since many cases have shown that child trespassers are a group of persons who

are likely to be tempted to go onto someone else’s property because they are drawn in by an attractive

danger from the boundary lines of the property, the landowner is now responsible for making their land

safe.

In other words, the attractive nuisance doctrine was created to mainly protect children from dangerous

conditions. The reason for this is that the law believes that children are unable to appreciate dangers and

risks associated with an object or dangerous condition on another’s property. Due to their various ages

and levels of maturity, the law assumes that children are incapable of understanding these dangers even in

group settings with some minor exceptions.

What Are the Basic Elements of Attractive Nuisance?

As previously mentioned, a landowner has a duty to take reasonable precautions to protect children

from dangerous attractions on their property. However, not all dangerous conditions may be considered as

attractive. In order to determine whether a condition is considered an attractive nuisance or not, it must

satisfy the following elements:

• The dangerous object or condition in question exists on the property;

• The dangerous object or condition could be considered as attractive or tempting to young

children;

• The child did or could not comprehend the dangers associated with the object or condition due to

their age and maturity level;

• The dangerous object or condition was left uncovered and was exposed in a way that would catch

a child’s eye or was near where children usually play or reside; and

• It was relatively easy for the landowner to prevent access to the dangerous object or condition in

question or to at least make it safe.

What If the Danger Cannot Be Seen from the Property Boundaries?

A landowner can still be liable for injuries even if the dangerous object or condition cannot be seen from

the outskirts of the property. Basically, if there was a likelihood that a child would trespass onto their land

to get closer to the dangerous object or condition, then they will be held liable for any resulting injuries

due to their failure to cover the dangerous object and/or condition or to at least find a way to protect the

child from discovering it and getting hurt.

A landowner has a duty to fix or cover anything that could potentially injure a trespassing child on their

property. A landowner should also attempt to prevent entry in any places where the landowner knows or

should know that a child will trespass to get onto their property. For instance, if there is a hole in their

fence or an easy way for a child to lift a latch on a gate, the landowner must repair the hole in their fence

and find a sturdier lock to keep children out.

In addition, a landowner owes an additional duty to exercise reasonable care to protect children from

dangerous objects and conditions on their property. Again, this means that even if the danger is not visible

from the boundaries of the property, the landowner may still be held liable for any injuries to trespassing

children if any of the following factors exist:

• The landowner could or should have reasonably anticipated that a child would trespass onto their

land to get to the dangerous attraction;

• The measures to protect a trespassing child from harm would not place a heavy burden on the

landowner and would consist of a relatively easy solution; and/or

• The landowner knew or should have known that a dangerous condition or object that would

attract children was present on their land.

Thus, whether or not the dangerous attraction can be seen from the property boundaries does not matter as

much as it does for the landowner to know or should have reasonably known that a child was likely to

trespass onto their land to get to the dangerous object or condition. Landowners should be cautious about

safety conditions on their property when it comes to neighborhoods where many children reside and play.

Children Are Curious by Their Very Nature

A child’s curiosity leaves him or her open to learning and new experiences, but it also leaves the child far

more vulnerable to placing himself or herself in dangerous situations. When an adult enters someone

else’s property without an invite or permission, he or she is trespassing in the eyes of the law, and if

injured, the adult is unlikely to have a legal leg to stand on.

When the so-called trespasser is a child, however, it’s a somewhat different situation. The attractive

nuisance doctrine helps to protect children in this situation by holding the property owner or manager

liable if all the following apply:

• The child’s injuries were caused by an artificial (not naturally occurring) danger on the property

that is known to or likely to attract children who can’t adequately appreciate the inherent risk

associated.

• The property owner or manager could have or should have foreseen the child’s attraction to the

danger.

• The property owner recognized or should have recognized that the attractive nuisance in question

posed an inherent danger to the child.

• The benefit of keeping the attractive nuisance and the burden associated with eliminating its

danger (for the property owner or manager) was slight in comparison to the level of risk

experienced by the child.

• The property owner or manager failed to employ reasonable care in his or her efforts to remove

the danger in question.

Common Attractive Nuisances

Attractions such as pools and Jacuzzis are commonly understood to be attractive nuisances whose owners

are routinely expected to implement safety protocols, such as covers and fences. Here are some other

common attractive nuisances:

• Man-made ponds, lakes, and fountains

• Trampolines

• Playground equipment and jungle gyms

• Abandoned cars and appliances

• Farm equipment

• Exposed power lines

• Holes dug in the ground

HOW CAN I TELL?

An attractive nuisance is something interesting that would entice a child into entering another's property.

Although this may sound very broad, most courts limit this considerably.

For instance, many courts require that the object be man-made, and many require that you "maintain" the

nuisance to be liable.

Non-Maintained Attractive Nuisances (Not Liable)

Non-maintained items that are not legally attractive nuisances are:

• Ponds

• Lakes

• Cliffs

• Hills

Apparent Dangers (Not Liable)

Also, most courts understand that small children can hurt themselves on virtually anything. The law

generally presumes that children understand some dangers, such as:

• Falling from a great height

• Open pits

• Touching fire

• Sharp objects

• Poison

• Hot water

• Approaching a wild animal on your land

• Approaching an angry fenced or leashed animal (i.e., a bucking horse)

If a child is too young to understand these risks, they should be supervised by a parent or guardian. The

guardian is responsible for taking reasonable steps to keep them off your property or away from safety

risks.