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When a property owner is liable for a trespassing child’s injury

| Jun 27, 2018 | Personal Injury

Children in Texas learn by exploring new areas and picking up interesting objects. This often means they are going places and doing things that could be harmful to them. For the curious mind, there is nothing more tempting than to go where they have been told not to. Homeowners who have everyday objects and features on their property that could endanger children have a special responsibility to take steps to prevent injured visitors.

According to the Texas Civil Practices & Remedies Code, a trespasser is a person on a property to which they have no legal right, express or implied. Per Section 75.007, the landowner, occupant or lessee is not liable for injuries incurred to a trespasser as long as it was not willful or as a result of gross negligence. However, the trespassing law exempts children.

The attractive nuisance doctrine takes into consideration that children do not understand the dangers specific features and objects present. FindLaw defines an attractive nuisance as something interesting enough to entice a child into entering someone else’s property. As a result, property owners must take steps to protect children that may be attracted there. Typical objects that tempt children include the following:

  • Water features such as swimming pools or fountains
  • Machinery and power equipment including lawnmowers, tractors and gas pumps
  • Hide-and-seek areas such as wells and tunnels
  • Climbing or winding elements including stairs and paths

Using common sense and taking basic precautions can help avoid liability. While childproofing is not required, many courts may be satisfied if property owners can show what steps they took to prevent injuries, even if they were not sufficient.