Under Virginia’s personal injury law, all property owners have a duty of care to anyone who has consent or implied consent to be on their property. This means the property owner has a responsibility to make sure the property is reasonably safe for anyone who is lawfully on it. These are often referred to as premises liability lawsuits or claims. If a person is injured while trespassing on private property, unless the property owner engaged in willful or wanton conduct, then, in most cases, the owner cannot be held liable for those injuries. Sometimes different tests apply if the person is a social guest or a business invitee, and those rules are not the focus of this article. However, when it comes to children who are trespassing, Virginia law adheres to the “attractive nuisance doctrine.”
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The law recognizes that children are naturally curious and often do not recognize or comprehend situations that may put them in danger, therefore, according to the law, it is the property owner’s legal responsibility to protect the child from an attractive nuisance on his or her property. An attractive nuisance is a condition, object, or structure that would be so enticing to a child, they would go on the property without permission. Examples of attractive nuisances include:
- Swimming pools
- Large appliances that have been discarded (i.e. refrigerators, washing machines)
- Machinery (lawnmowers, tools)
- Dangerous animals
In Virginia and most states, children under the age of seven are presumed incapable of contributory negligence due to their young age. It is typical for young minor children under seven years of age to also be those involved with a condition on the property that creates what is called in the law an "attractive nuisance."
Under the attractive nuisance doctrine, in order for a property owner to be liable for injuries a child sustains, a Virginia personal injury attorney must show that the following elements existed:
- The property owner knew – or should have known – that a child would likely trespass on their property.
- The condition, object, or structure on the property has the potential to cause serious injury or death to the child.
- The injured child was too young to understand the risk the condition presented.
- The cost of repairing or preventing access to the condition, object, or structure was minimal compared to the risk that it posed to children.
- The property owner failed to take reasonable action to eliminate the danger the condition, object, or structure posed.
There are many steps that property owners can take in order to ensure that no child is tempted to go on their property and access the attractive nuisance object. For example, if a property owner has a swimming pool, they should have high fencing with a self-latching gate so children cannot gain access to the pool. There are numerous other situations where a condition can be attracted to a child. For example, in situations where a property owner has placed an appliance outside for storage or disposal, then the door of the appliance should be removed so a child cannot get trapped inside and suffocate.
Contact the Legal Team at Shapiro & Appleton
Premises liability cases, especially those that involve children, can be complex. If your child has been injured in a premises liability accident, contact a Virginia personal injury attorney to find out what legal recourse you may have against the property owner for the losses your child’s injuries have caused. Our Va. personal injury firm has successfully represented many child victims and their families in obtaining the financial compensation they are entitled to.
To set up a free and confidential consultation with one of our seasoned Virginia premises liability attorneys, call our office today. Our legal team will work diligently to get your child the financial justice they deserve.