Was your child injured while trespassing? You may be entitled to compensation.
Massachusetts courts have consistently ruled that landowners only owe trespassers (anyone entering or remaining on a landowner’s land without the owner’s consent) a duty to refrain from willful, wanton and reckless conduct that is likely to cause injury. This is different than the duty of care that a landowner owes a lawful visitor, guest or tenant.
A landowner owes a lawful visitor, guest or tenant duty a to exercise reasonable care to keep the premises in reasonably safe condition. As a result a landowner won’t be held liable for injuries to the trespasser resulting from mere negligence or a failure to exercise reasonable care in keeping the premises in a reasonably safe condition. A landowner could be liable to a lawful visitor, guest or tenant if he did not go to reasonable lengths to fix a defect on the property that caused injury to a lawful guest. On the other hand, if the landlord didn’t take reasonable measures to repair the defect and a trespasser got injured then the landowner wouldn’t be liable for the trespasser’s injuries. That is because a trespasser cannot hold a landlord responsible for injuries that resulted from the landowner’s mere negligence (i.e., failure to exercise reasonable care). A trespasser cannot hold a landowner responsible for injuries arising on the landowners land unless the trespasser shows the landlord created the defect in order to injure somebody, or left the defect unrepaired knowing it was likely that the defect/hazard was going to injure someone.
Child Trespassers
However, the Massachusetts legislature felt that landowners should owe a greater duty to child trespassers. As a result, the legislature enacted MGL 231 section 85Q, which changed the duty that landowners owe child trespassers. Landowners now owe foreseeable child trespassers a duty of ordinary reasonable care when it comes to man-made artificial conditions on the land.
The statute states that a landowner maintaining an artificial condition (man-made structure like a pool, water slide, machinery) on his land will be liable for physical harm to children trespasser if:
- the landowner knows or has reason to know that children are likely to trespass (if children have wandered on to the landowners land in the past then the landlord has reason to know children are likely to trespass);
- the landowner must know that condition on the land involves an unreasonable risk of death or serious bodily harm to children (most young children can’t swim so it’s reasonable to assume that a child that can’t swim is likely to drown in a pool if left unsupervised or that a gas powered log splitter is dangerous even to adults);
- the children are too young to realize the danger the condition poses (most children are naturally curious and if they see a pool they are more likely concerned with playing in the water than drowning);
- the landowner failed to take reasonable precautions to protect children from getting injured from the unnatural condition (a landowners pool should be fenced in so that a child can’t get inside the pool area).
Pools are not the only man-made artificial condition that landowners need to protect foreseeable child trespassers from. Swing sets, trampolines, water slides, skateboard ramps, fire pits, and machinery are examples of man-made artificial conditions that landowners need to protect potential child trespassers from.
Brockton Personal Injury, Child Trespassing Accident Attorneys, Free Consultation
Our knowledgeable and experienced Greater Boston personal injury and child trespass accident attorneys at the Law Offices of Gerald J. Noonan are available to assist clients throughout all of Southeast Massachusetts, including but not limited to Brockton, Taunton, Bridgewater, Weymouth, Hingham, Quincy, Plymouth, Marshfield, Attleboro, Stoughton and all smaller cities and rural areas in Southern Massachusetts. We also serve the counties of Plymouth, Norfolk and Bristol, Massachusetts.
No matter where you are located, we are just a phone call away. Call our law offices today to schedule a free no-obligation case review and consultation at (508) 588-0422 and you will have taken your first step towards getting the compensation you deserve. You can also click here to use our Free Case Evaluation Form.