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Premises Liability and Children

Casey Woodruff

snowy sidewalkAurora Personal Injury Lawyers

Children are accident-prone. They are often attracted to potentially dangerous situations and conditions, which may lead them to trespass on others’ property. Because children are often inexperienced and less capable of understanding risk than adults, Illinois law provides special protections for children injured on another’s property. If your child has been injured because of a dangerous condition or risk on someone else’s premises, you should contact an experienced personal injury lawyer today.

Attractive Nuisance

Until 1955, Illinois recognized the attractive nuisance doctrine, which was an exception to the general rule that property owners and occupiers owed no duty to trespassers other than to avoid purposely or wantonly harming them. Under the attractive nuisance doctrine, trespassing children were given extra protections. If a property owner had a dangerous condition on his land that was enticing to children, such as a swimming pool, construction site, or abandoned car, and a child trespassed and injured him or herself because of the dangerous condition, the landowner could be held strictly liable for the injuries.

Negligence

However, Illinois no longer recognizes strict liability under the attractive nuisance doctrine. Instead, a property owner may be held liable for a trespassing child’s injuries under a negligence cause of action. The court balances the foreseeability of the risk to children with the relative cost to remedy the dangerous condition. To recover damages, an injured child must show that:

  • The owner knew that young children were on the premises;
  • There was a defective structure or dangerous condition on the property;
  • The structure or condition was likely to cause injury because the child was unable to appreciate the danger; and
  • The cost of remedying the danger was low.

If a child is lawfully on the property, the negligence analysis is somewhat simpler. Property owners and occupiers must take ordinary care to protect children from dangerous conditions, whether the owner created the condition or it occurred naturally on the property.

Trespassing Children

Injured children may file suit whether or not the child was lawfully on the premises, as long as they can prove negligence.  Trespassing children are not denied the opportunity to recover damages for their injuries in Illinois.  But if a property owner did not know that the trespassing child was present or likely to be present, then he or she only has a duty to avoid purposely or recklessly causing injury to the child.

Property Owner’s Duty

Although the attractive nuisance doctrine does not apply in Illinois, the presence of an attractive nuisance does remain useful for analyzing a property owner’s duty.  If an attractive nuisance exists on the property, this means that it is likely foreseeable that a child would trespass.

Property owners have no duty to protect children from obvious dangerous conditions, if a child should have appreciated the danger and avoided the risk. For example, property owners may not have a duty to protect children from the risks of thin ice on a pond, an above-ground pool, or climbing a tree.

If your child has been injured on another’s property, an experienced attorney can help you recover compensation for your child’s injuries. Please contact a personal injury attorney at Woodruff Johnson & Evans for an initial consultation in our offices in Aurora, Chicago, or Champaign.

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