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Landowner or Tenant Could Be Responsible for Harm to Trespassing Children


Q: I've heard that Ohio has a law that makes landowners liable for injuries to a child who is harmed while trespassing.  Is this true?
A: Yes.  In a June 2001 decision, the Supreme Court of Ohio changed Ohio's general rule that said property owners weren't responsible for injuries to trespassing children.  This law, called the "attractive nuisance doctrine," states that a landowner may be liable for injuries to a trespassing child (under age 18) harmed by an "artificial condition" on the property and for injuries to persons who try to rescue the child.

Q: What is an "artificial condition" that could lead to injury?
A:
A swimming pool is the most common example.  Other artificial conditions might include recreational equipment, water wells, cisterns, deep holes, equipment, machinery, tools, gas and water tanks, high heat or open flames, chemicals, pesticides, oil and gas wells, generators, and electric fences, wires and power boxes.  An animal is not an artificial condition.

Q: Is the landowner automatically responsible for injuries to trespassing children?
A:
No.  In fact, the harmed party must prove that the landowner is liable.  A judge or jury might find the landowner liable if the harmed party proves each of the following:

  • The child's physical harm was caused by an artificial condition on the land.
  • The landowner knew or should have known that children would trespass near the artificial condition.
  • The landowner knew or should have known that the artificial condition created an unreasonable risk of death or injury to children.
  • A trespassing child could not easily discover the artificial condition, or would not recognize the danger it posed.
  • The risk created by the artificial condition is greater than its benefit to the landowner.
  • The landowner did not take reasonable care to eliminate the artificial condition or protect trespassing children from the condition.

Q: I own land in a rural area containing both water and oil wells.  Must I remove these "artificial conditions" so that a trespassing child won't be harmed?
A:
No, the attractive nuisance doctrine doesn't require you to eliminate every dangerous condition.  Rather, it requires you to act with reasonable care.  You must:  1) assess all artificial conditions that create an unreasonable risk of injury to children; 2) determine if children are likely to trespass near the identified conditions; and 3) where trespass is possible, take steps to eliminate the dangerous condition or protect children from being harmed.

Q: I have an above-ground pool.  How can I protect myself from possible liability for a child's injury?
A:
You could prevent a child from getting into your swimming pool by constructing a fence with a locked gate around the pool and removing the exterior ladder when not in use.  Leave the interior steps in place and provide lights and life saving equipment to assist a child that might fall into the pool.

Q: I rent my residence. Would I be liable under the attractive nuisance doctrine?
A:
You might.  Liability would fall on the "possessor" of the property, who is often the landowner.  But the possessor could also be a tenant, a guest, house sitter or an independent contractor performing work on the property, if that party had control over the property.

Q: Why did Ohio adopt this rule of liability?
A:
The Court cited changing societal conditions as its reason for adopting the attractive nuisance doctrine.  Because there are now more people living more closely together than in the past, our use of property affects those around us more than it once did.  Today's children are exposed to more dangers, and require additional protection.

12/14/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA). This article was prepared by Peggy Kirk Hall, Director of Agricultural and Resource Law, The Ohio State University Extension.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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