Premises liability is a complex issue in tort law, mostly because it is difficult to assign blame. Generally, the premises owner or controller is liable when a person or persons suffer injury because of dangerous conditions on the property. In order to make a claim, the plaintiff must have been licensed or invited to be on the premises in the first place. Trespassers are typically barred from bringing an action against the premises owner because their presence was not lawful.
In the case of children, however, this distinction is not applied. Children are a protected class of victims because it is assumed that they do not have the requisite knowledge or discernment to understand that they are trespassing. As such, the duty of care imposed on the premises owner is more onerous when it comes to children.
Premises liability law as it applies to children is often based on what is referred to as the attractive nuisance doctrine. Most states, including Texas and Wisconsin, apply some version of this doctrine in their tort laws. The attractive nuisance doctrine applies to the owner of a property that represents a desirable area for children to visit i.e. swimming pool, who must take measures to neutralize the potential danger it poses to children that may enter the property uninvited and unsupervised.
A good example would be a junkyard. There are a lot of things there that would compel a curious or adventurous child to explore it. There are also a lot of opportunities there for injury to a child. The junkyard owner knows or should have known that children will trespass, and is mandated by law to secure the premises so that children will not be able to get in without being seen. Dangerous objects such as old refrigerators and broken glass must be attended to so that it will not cause harm to a child, such as taking off the refrigerator door and sweeping up the glass.
Premises liability applies when property owners fail to take reasonable care to ensure that a trespassing child will not come to harm in what he or she knows or should have realized would be a desirable property for children to visit. However, it can be a difficult thing to prove without the help of a premises liability lawyer.
If your child suffered serious injury or died on someone else’s property because of prevailing dangerous conditions, you may have recourse to civil litigation. Consult with an experienced lawyer in your state with experience in cases involving children and premises liability.