Landowner liability–are you liable for injuries?

Your neighbor’s child starts exploring the old rusty truck you have had in your back yard and gets hurt. Or a child decides to explore the swimming pool on your property and is injured, or drowns. If a child is hurt in either of these (or other) instances, are you liable for the child’s injuries or death? In short, the answer in Ohio is likely “yes.”

Ohio adopted the “attractive nuisance doctrine” in 2001, which means that landowners might be held liable for injuries to children trespassing on their land if the injury is caused by a hazardous object or condition that is likely to attract children who are unable to appreciate the risk. The law is intended to protect trespassing children from dangers that, due to their youth, they cannot understand.

The Ohio Supreme Court noted when it adopted the attractive nuisance doctrine that landowners could be liable for injuries to a trespassing child if they created a dangerous condition and knew, or should have known, that the condition posed an unreasonable risk of serious harm to children. The point in adopting the doctrine was, according to the Court, to protect children, holding that young children are entitled to a degree of care “proportioned to their inability to foresee and avoid the perils that they may encounter.” The doctrine does not create automatic liability even if there is an attractive nuisance on the property. Specific facts of the situation matter.

The doctrine will impose liability only if: 

  1. there is an artificial condition on the property (which could include abandoned cars, swimming pools, play equipment, hot tubs, ramps, machinery, electric fences, water wells);
  2. the artificial condition could pose an unreasonable risk of death or serious bodily harm to children;
  3. the landowner knew or had reason to know that children are likely to trespass and that, because of their youth, they could not discover or appreciate the risk involved;
  4. the benefit to the landowner of keeping the condition is slight when compared with the risk to children; and,
  5. the landowner failed to exercise reasonable care to eliminate the danger or otherwise protect children.

The attractive nuisance doctrine does not apply to adult trespassers, since they can recognize risk. However, in situations where an adult trespasser is trying to rescue a child from danger created by the landowner’s negligence, then the doctrine (and liability) could apply.

What should you do if you are aware of young children trespassing on your property? It is best to consult an attorney or ask local law enforcement for steps to take. Putting up “No Trespassing” or similar signs will not protect you if the child is too young to read. Other steps you might take could indicate your awareness of the trespassing, which could increase your liability. Contact me at julie@juliemillslaw.com if you have any questions about your property and responsibility.

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