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When Trespasser Becomes Plaintiff

ThinkstockPhotos-122406155The family of a 9-year-old California boy who survived a fall through a school’s skylight reportedly claims the school district should be held liable for his injuries because it was too easy to get on the school’s roof and district leaders knew children climbed up there but didn’t do enough to stop it. Property owners beware: A foreseeable risk can turn a trespassing child into a plaintiff.

As a general rule, the owner of land is under no duty to keep his or her premises safe for trespassers. But under Restatement (Second) of Torts §339 (1965), which is generally followed in California, an owner or possessor of real property is liable for harm to trespassing children caused by an “artificial condition” when

  • The place is one on which children are likely to trespass;
  • The condition involves an unreasonable risk of death or serious bodily harm to children;
  • The children, because of their youth, don’t discover the condition or realize the risk;
  • The possessor’s utility of maintaining the condition and the burden of eliminating the condition are slight compared with the risk; and
  • The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

The attractive nuisance doctrine—the antiquated common law rule governing the liability of private owners of land toward children—has been outmoded by the foreseeable risk approach. When a child is injured while trespassing on the defendant’s property, the attractiveness of the property to children is but one factor in determining whether the injury was foreseeable.

The claim of the boy who fell through the skylight will turn on questions of whether a 9-year-old is old enough to know it’s not safe to climb onto a roof, and whether the district did enough to protect children from themselves. These types of questions may reverberate through the halls of school district offices throughout the state.

Premises liability issues are covered in CEB’s California Tort Guide, chap 10, and is one of many topics discussed in CEB’s program Personal Injury Claims & Defenses, available On Demand. Get guidance on handling all tort claims against a public entity, including claims of dangerous condition of public property, in CEB’s California Government Tort Liability Practice, chap 12.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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