When a person is trespassing on your property when they hurt themselves on a safety hazard, who is legally responsible? Ordinarily, the answer is that a trespasser assumes the burden of the risk when they walk onto someone else’s property without permission, but there are exceptions. One of the most important falls under what is sometimes called the attractive nuisance doctrine.
Premises liability and trespassers
Put simply, premises liability is the legal theory that allows people to hold landowners liable for injuries they suffered due to a safety hazard at the person’s property.
A relatively common type of premises liability lawsuit involves a customer who was injured when they slipped on a liquid spill at a grocery store. The injured person argues that the owner had a duty to repair safety hazards, or at least to warn customers of the hazard, that they negligently breached this duty, that the accident happened as a result of this negligence, and that therefore, the owner should be held liable for their damages.
The outcome of a premises liability case depends in part on why the person was on the property. Property owners owe the highest degree of duty to invited guests, such as a customers or social guests. An owner has much less of a duty to a trespasser. An owner doesn’t have the right to set traps to intentionally hurt trespassers, but otherwise, they ordinarily don’t owe it to trespassers to repair or warn about hazards.
Attractive nuisance
The attractive nuisance doctrine represents an important exception to the rule about duty toward trespassers. The basic idea is that certain features on the premises, such as swimming pools and play structures, can make a piece of property so attractive to people nearby that the owner should expect trespassers. This is especially true if the trespassers are children and teenagers, who can’t be expected to fully understand the risks they are taking.
Numerous state and local ordinances tie in with this legal doctrine. For example, Las Vegas requires that any private swimming pool must be surrounded by a fence with a latching gate.
But, even if another law does not apply, the attractive nuisance doctrine can, in some specific circumstances, require that a property owner be held liable after a trespasser is hurt on their property. Often, the owner’s insurance must defend against these cases.
