With the summer season before us, many families are getting their yards, pools, trampolines, ready for family fun. As we all know, accidents can and will happen and children are drawn to certain structures and elements.

 

Here in Minnesota, whether or not a landowner is liable for injuries is based on landowner liability. This doctrine is predicated on what type of visitor to the property has been injured and involves invitees, licensees, and trespassers. 

 

 Landowners generally have a duty to keep their property in a reasonably safe condition that they owe to those that are invited onto the premises. Peterson v Balach, 199 N.W.2d 639, 647-648) (Minn. 1972) (Adopting the reasonable care standard to landowner liability claims brought by invitees and licensees).

 

Trespassers are an exception to the landowner’s duty of reasonable care mentioned above, though there are instances where a landowner may be held liable for trespasser injuries.

 

For example, landowners may be held liable for the injuries of trespassing children under the attractive nuisance theory. Under this theory, a landowner is liable for such injuries if he or she has actual or constructive knowledge of an unreasonable risk of injury (such as an artificial condition or structure that a child is too young to understand or appreciate.) The courts have been loose in their application of this principle, see Sengoles v Carlson, 902 N.W 2d 38, 47 (Minn. 2017) (“We decline to adopt a categorical rule that the danger of swimming unattended in any Minnesota river, lake, or pool is necessarily obvious to all children, no matter how young and inexperienced”) Id.  

 

A landowner who keeps a structure or other artificial condition on property that causes injury to a trespassing child is negligent when the following conditions are met:

1. The possessor knows, or has reason to know, children are likely to trespass on the property at the place where the condition exists, and

             2. The possessor knows, or has reason to know, that this condition exists, and

3. The possessor realizes or should realize that this condition involves an unreasonable risk of death or serious injury to children, and

4. The children are too young at the time of the accident to understand the risk of playing with, or being near, the hazard or do not discover the condition, and

5. The benefits to the possessor of keeping the structure or artificial condition as it and the burden of eliminating it are slight compared with the risk to the children, and

             6. The possessor does not use reasonable care to get rid of the danger or protect the children.

 

Croaker ex rel Croaker v. Mackenhausen, 592 N.W.2d 857, 860 (Minn. 1999) (quoting Restatement (Second) Torts § 339); CIVJIG 85.19. For the purposes of attractive nuisance, the courts may define a child as a person under seventeen (17) years of age, as determined by the facts. Hughs v Quarve & Anderson Co., 338 N.W. 2d 422, 424 (Minn. 1983).

 

This work demonstrates that landowner liability when summer fun at the backyard pool and trampoline are involved is complex and in no way is it intended to create an attorney client relationship or serve as a substitute for legal advice. If you need assistance in these areas, please contact us. At JD Haas & Associates, we have extensive experience in these areas.