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Attractive Nuisances

black-and-white-trampoline-733512-mA child sneaks out of his house onto his neighbor’s property late at night. He spots a trampoline on the property and heads in that direction. Without his parents’ consent, or the consent of the owner of the property, he climbs on the trampoline and begins jumping higher and higher. The minor is flying high in the sky. As he prepares his feet to hit the lining of the trampoline in an effort to jump even higher, he mistakenly hits the side of the trampoline which causes a gruesome leg break. After the homeowner hears the screams and contacts the appropriate authorities- the question remains… who is responsible for the injuries sustained by the child? The parents for failing to monitor their child? Or the homeowner for failing to properly fence or otherwise guard the trampoline?

In Massachusetts, a person who enters the land of another without any right or privilege to do so is considered to be a trespasser. Traditionally, an adult trespasser is entitled to no duty of care by the landowner. However, a landowner cannot engage in any willful, wanton, or reckless disregard for the trespasser’s safety. This generally means that a landowner cannot knowingly and intentionally disregard an unreasonable risk where there is a great likelihood that a person could be seriously injured should that person enter the land owner’s property (even without permission). What constitutes an unreasonable risk may vary depending on the circumstances of each particular case. However, when the trespasser is a child, as opposed to an adult, the law is vastly different.

Under Massachusetts General Laws, Ch. 231, § 85Q, any person who maintains an artificial condition upon his or her own land shall be liable for physical harm to children trespassing thereon if:

(a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass,

(b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it,

(d ) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Put another way, landowners owe children a duty of reasonable care in situations where a minor child trespasser might not appreciate the peril of a dangerous condition on a land owner’s property due to their youth. Any fault on the part of the child for failing to appreciate the gravity of the dangerous situation they find themselves in is determined by comparing that child with a child of similar age, intelligence, and experience.

In context with the scenario presented above, the court would first determine whether the existence of an unguarded trampoline in an area accessible to children would constitute an unreasonable risk of harm to children. Additionally, the court would determine whether a child could unknowingly get injured on said trampoline, and whether they could appreciate the harm the way an adult could. Finally, the court would determine whether the land owner exercised reasonable care to eliminate that danger- perhaps putting up warning signs or by placing a secure gate around the trampoline. The resolution of this matter would depend greatly on these factors and the age of the child, but not one factor is dispositive.

To learn more about this issue, please check out the portion of our site dedicated to premises liability and injuries to children.  If your child has been injured on the property of another, our office can help you pursue your claim. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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