As a landowner, you may expect that you’re not liable for any injuries sustained by illegal visitors. Unfortunately, that’s not exactly true. You may be held liable for a trespasser’s injuries, under specific circumstances. The specifics of liability often depends on the age of the trespasser, since Ohio law recognizes the doctrine of attractive nuisance, and handles cases involving injured children differently than injured adults.
Attractive Nuisance Doctrine & Child Trespassers
When it comes to young children, the law often tends to favor those of a tender age. If a child is injured while trespassing on your property, it is possible for you to be held responsible for their injuries, under the doctrine of attractive nuisance. This doctrine has been recognized in Ohio since 2001, and lays out the specific circumstances in which a property owner would be held liable for child trespasser injuries. Requirements for Attractive Nuisance claims:
- The child was injured by and artificial condition on the property, such as a well, pool, mine, or abandoned car.
- The child was trespassing, or had entered private property without the knowledge or permission of the landowner.
- The condition exists in a place where the landowner knows or should know children are likely to trespass.
- The landowner knows or should know that the condition poses an unreasonable risk of harm in its current state.
- The injured child does not realize the risk posed by the condition, due to their young age.
- The burden on the landowner of maintaining the condition or eliminating it to prevent injury is slight compared to the risk posed to children.
- The landowner has failed to exercise reasonable care to eliminate the danger or protect children from harm caused by the condition.
If a landowner is to be held liable for a trespassing child’s injury, all of the above requirements must be proven as true by the claimant. An example of a liable landowner could be one who had an open mine shaft on their property. The land owner knew that children cut across their property frequently, and that they often played near the mine shaft. It would be inexpensive and easy to spend an afternoon constructing a fence and posting warning signs to guard the mineshaft, but the landowner failed to do so. If a young child was injured by the mine shaft, it is highly likely that the land owner would be responsible for the child’s injuries or death.
Liability for Adult Trespassers
The liability for injuries sustained by adult trespassers differs from that owed to child trespassers. Adults, due to their age, are expected to be familiar with the hazards of a dangerous condition and are afforded less legal protection compared to children. In Ohio, adult trespassers are frequently responsible for their own injuries. A landowner only owes trespassers the duty to refrain from willfully, wantonly, or recklessly causing injury. This means that a landowner cannot knowingly cause harm to trespassers or create dangerous conditions that they know will not be discovered by trespassers until harm has come to them. This means that landowners owe a duty of care when they know that trespassers intrude upon a limited area of the property where there is a dangerous artificial condition or a dangerous activity is performed. For example, if you knew that trespassing was common in an area where you had a mineshaft on your property, but you failed to take steps to secure it or mark it, it is possible that you may be held liable for a trespassers injuries. This is because you were aware of trespasser activities but did not take steps to increase the safety of the area or warn trespassers of the danger. Premises liability cases can be complex, but they can be downright confusing if they involve trespassing. Our Toledo premises liability attorneys are here to help! Whether you’re the parent of an injured child or you want to evaluate your liability risk as a property owner, our team at Williams DeClark Tuschman Co., L.P.A. can help you understand your legal options.