With homeownership comes many responsibilities: pay your taxes, follow HOA rules, and … avoid willful harm to trespassers? That’s right. You must avoid harming trespassers, and if you discover a trespasser on your property, it’s your duty to warn him or her of any known dangers that are not open to ordinary observation.
It doesn’t end there. A property owner is subject to liability for injuries suffered by a child trespasser if that child was enticed onto the property by what is called an “attractive nuisance.”
Here’s how attractive nuisance is defined (1):
- the property owner knows or has reason to know that the place where the dangerous condition exists is one where children will likely trespass
- the condition is known or should be known to cause an unreasonable risk of bodily harm to a trespassing child
- the child because of his or her age does not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it
- the burden of eliminating the danger is slight compared to the risk posed to children
- the property owner fails to exercise reasonable care in removing the danger or protecting the child
Some examples of an attractive nuisance could be a pool, a treehouse, or a trampoline.
“Homeowners insurance would cover a home pool incident, but you would still be subject to a claim if a neighbor’s child were to enter your property and get injured or lose their life in your pool if it isn’t properly fenced in, for example,” explains Orlando personal injury attorney Doug Martin. “This could also be true of a treehouse or trampoline. When a homeowner leaves a trampoline in an open area in their yard, it is appealing to children who don’t understand the dangers involved, so it is up to the homeowner to make sure that trampoline is secured from trespassers.”
Here’s what the law states (2):
The attractive nuisance doctrine declares that one who maintains on the premises a condition or agency that may reasonably be expected to attract children of a tender age, and that is dangerous to children by reason of their inability to appreciate the peril, must use reasonable care to protect the children against the danger involved.
(1) From the February 2016 update of Florida Jurisprudence
(2) From the May 2015 update of Florida Pleading and Practice Forms