Child Trespassing Personal Injury in MA- “Attractive Nuisance”

Child Trespassing Landowner Liability

Child Injured in a Massachusetts accident

Below you will find answers to Frequently asked questions concerning children injured in Massachusetts while trespassing. In Massachusetts what duty do landowner’s owe to persons trespassing on their real property? No duty is generally owed to adult trespassers except in exceptional circumstances. The general rule in Massachusetts is that landowners are not liable to trespassers except for not acting willfully or wantonly or in reckless disregard of the health and safety of the  child trespasser.  SCHOFIELD vs.  MERRILL, 386 Mass. 244   If a landowner learns of a trespasser who appears to be in peril then a landowner must exercise reasonable care based on the circumstances at that time. Id.

What types of condition on real estate is a landowner subject to liability?

In Massachusetts, a landowner is only liable to child trespassers for maintenance of an artificial condition on their property.

What duty is owed to child trespasser’s in Massachusetts?

The duty owed to a child trespasser in Mass. who is seriously injured or killed on real estate is set forth in Chapter 231 Section 85 q as set forth below. This area of premises liability law is generally known as the attractive nuisance doctrine. The attractive nuisance doctrine posits potential liability for landowner’s as a result of child trespassers injured on land if certain elements are present.

“Any person who maintains an artificial condition upon his 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.” Section 85Q.

What are the seminal cases in Massachusetts?

  1.  BRIAN MATHIS  vs. MASSACHUSETTS ELECTRIC COMPANY
  2. PHILIP SOULE vs. MASSACHUSETTS ELECTRIC COMPANY  “In 1954, when the plaintiff was eight years old, he climbed up to an electric power substation controlled and operated by the defendant’s predecessor Weymouth Light and Power Company, and was severely injured by coming into contact with a 13,800 volt electrical wire.”
  3. Puskey v.Western Massachusetts Electric Co., 21 Mass. App. Ct. 9720

Could a child be comparatively negligent for a premises liability accident?

Yes. “The possible negligence of a child is judged by the standard of behavior expected from a child of like age, intelligence, and experience.” Mann v. Cook, 346 Mass. 174 , 178 (1963)  PHILIP SOULE vs. MASSACHUSETTS ELECTRIC COMPANY  see also  BRIAN MATHIS  vs. MASSACHUSETTS ELECTRIC COMPANY

What types of artificial conditions could constitute an attractive nuisance?

  • Swimming pools
  • Koi Ponds
  • old refrigerators
  • machinery
  • electric lines
  • ditches

The Massachusetts attractive nuisance doctrine

The Massachusetts attractive nuisance doctrine is a legal concept that pertains to personal injury cases involving children. Under this doctrine, property owners may be held liable for injuries sustained by children on their property, even if the children were trespassing, if certain conditions are met. The doctrine is based on the idea that children are often unable to appreciate the dangers of certain attractive features or conditions on a property, and property owners have a responsibility to protect them.

Here are some key elements and considerations related to the Massachusetts attractive nuisance doctrine:

  1. Attractive Nuisance: An attractive nuisance is something on a property that is likely to attract children because of its allure or curiosity. This could include things like swimming pools, trampolines, playground equipment, or even a construction site.
  2. Duty of Care: Property owners have a duty of care to take reasonable steps to protect children from potential harm posed by these attractive nuisances. This means they should foresee the risk and take appropriate precautions.
  3. Child Trespassers: The doctrine generally applies to child trespassers – children who are on the property without permission. It recognizes that children may not fully understand the concept of trespassing and may be drawn to the property due to the attractive nuisance.
  4. Reasonable Care: Property owners are expected to exercise reasonable care in maintaining, securing, or warning of the dangers posed by the attractive nuisance. This may involve putting up fences, warning signs, or taking other measures to prevent children from accessing the dangerous area.
  5. Exception for Very Young Children: In some cases, the doctrine may not apply to very young children who cannot comprehend the danger. However, it’s essential for property owners to exercise care even in such cases.
  6. Contributory Negligence: While the doctrine can hold property owners liable for injuries to children, it does not absolve the child of all responsibility. If the child’s actions were particularly reckless or dangerous, it may affect the outcome of the case.

If a child is injured due to an attractive nuisance on someone’s property, a legal case may be brought to determine if the property owner was negligent in maintaining or securing the dangerous condition. If the court finds that the property owner failed to take reasonable precautions to protect children, they may be held liable for the child’s injuries.

It’s important to note that the specifics of the attractive nuisance doctrine can vary by jurisdiction, and in Massachusetts, as in other states, it’s crucial to consult with an attorney experienced in personal injury law to understand the local application of this doctrine and how it might apply to a specific case.