A person who owns property owes no duty of care to see that his property is safe for a person who enters it unlawfully. So long as the property owner does not willfully or wantonly harm the trespasser, he will traditionally not be liable. At the same time, most children cannot grasp the idea of trespassing and may do so unintentionally. For this reason, a modified set of rules applies to them, known as attractive nuisance law.
Attractive Nuisance Law for Trespassing Children
Under this doctrine, a property owner has a duty to exercise reasonable care for children who trespass onto his property. There are many nuanced factors influencing whether courts impose or deny liability, but most are conditional on the following factors.
- Artificial feature – A property owner is not responsible for dangerous features on their land that occur naturally. For example, if a child fell out of a tree on someone’s property, courts would not hold that person liable.
- Reason to anticipate children on the property – There must be a strong reason to expect that children might trespass onto one’s property for the owner to be held liable. This is where the “attractive” part of attractive nuisance comes into play.
- In Louisiana, courts require a high degree of “attractiveness” to impose liability. It’s not enough for a child to be injured while climbing on an object on a person’s property, for instance. The object itself must be so tempting for the child to play on that it, by its own nature, causes the child to trespass.
- Small degree of usefulness – Attractive nuisance law does not apply when the dangerous objects present provide a high enough utility. Railroad tracks, for example, are exempt. Their benefits are great, while attempting to childproof the tracks would be economically unfeasible.
- Small burden on landowner to resolve – The court does not expect for property owners to experience significant financial distress to remedy unsafe premises. In Louisiana, ponds are a common instance of this. However, this is partly due to the state’s topography and the usefulness of many of the ponds.
A trespassing child is not a criminal, and the law reflects that. Attractive nuisance doctrine gives a judge the leeway to elevate the status of a trespassing child. This could either be to that of a licensee or invitee, depending on the circumstances.