Playground Injuries to Trespassers
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Generally, a landowner (business, school, church, homeowner) is not liable for injuries suffered by a person who trespasses on the landowner's property without permission. This means, with a few exceptions, if the school or business is the owner of the property on which it sits, then its liability as a landowner will be limited by law. A basic understanding of trespassing laws will be helpful in understanding this limitation.
Landowner Liability and Trespassers
A trespasser is anyone who physically invades the real property of another. The tort (creating civil liability) of trespass also requires that the private land be the individual’s intended destination. This doesn’t mean that the invasion of property needs to be part of the person’s intent, just the geographic destination. This element of intent can sometimes be hard to prove, but in a situation such as a child climbing over a school fence (at night), in order to get to a playground, the child did intend to reach his destination by trespassing on school property. If the property belongs to the school, a finding that the child is a trespasser is more likely than not. This means the school’s liability, if any, will be severely circumscribed.
Exception to Landowner Liability in Trespassing Cases: Attractive Nuisance
Attractive nuisance, as an exception to the rule preventing property owners from being held liable for injuries sustained by trespassers, states that if it is known that children gather there, or that an object on the property is likely to attract children, that the property owner may still be held liable. Attractive nuisance requires that that the landowner be shown to be negligent in preventing the risks that they should have expected, considering that they have such an “attractive” object on their property.
Attractive nuisance typically does not apply if the property owner can show that there is no reason to expect children to be on the property, nor does it apply if it can be shown that proper precautions were taken to make the property secure, and to prevent any unreasonable risk of harm to children.
In this situation, you may be able to file a lawsuit against the school for your child’s injuries suffered on the playground. Though he was trespassing on the property by climbing the fence during the night, attractive nuisance could possibly be used here since a playground is something that one might expect would attract children to the property. The school could argue that it took reasonable precautions to avoid harm by putting a fence around the playground, but depending on the type of fence and its condition, a court may or may not find that it was adequate protection.
Playgrounds and Government Liability
The U.S. Consumer Product Safety Commission (CPSC) has written a handbook on public playground safety, as well as a number of other documents related to equipment and grounds safety and proper building procedures and standards. The “Library” section of the CPSC website contains a lot of information on standards, most of which is geared toward public employees that are meant to implement those standards. This means that you may find some of the information related to playground safety to be helpful for your case, or at least relevant to issues brought up in attractive nuisance liability cases. After all, the data it contains will indicate which aspects of playground safety the government already knew it needed to take special care of.
Laws related to attractive nuisance vary from state to state. For example, some states exempt certain objects found on property, such as pools, from being considered an attractive nuisance. Some states also have age requirements for the children involved. Therefore, it is best to consult with a personal injury attorney about the facts of your case and the specific trespassing laws in your state.