ABA Family Legal Guide

Home Ownership

Property Insurance and Other Protections

Floor Wax and Dog Attacks: Liability Issues

What about liability in regard to children?

The law concerning a property owner's responsibility for children, even when they are trespassing, has changed over the years. In 1901, when a five-year-old drowned after falling into an uncovered excavation that had filled with water, the court ruled that because the child was a trespasser and the property owners didn't know there were children around the pit, they weren't liable. Even then, however, another legal doctrine was evolving, stemming from injuries caused to children playing on railroad turntables left unsecured in areas frequented by the public. In a series of late-nineteenth-century cases involving such injuries, the courts found the railroads negligent. The courts ruled that some dangerous places look like such fun that landowners should expect children to come play.

The law calls such places attractive nuisances. Even though an uninvited child wandering into your yard to inspect the swimming pool might well be a trespasser, the law says you have a special duty to erect barriers to protect children from harm's way. That's why the Supreme Court of Georgia refused to dismiss a case against the owners of a swimming pool in which a two-year-old drowned. The swimming pool was in the side yard of their home on a corner lot, three blocks from an elementary school. The yard and swimming pool were not fenced in, and the pool had both a diving board and a slide.

Another case involved a Michigan family that stopped at a private home to buy raspberries. While the adults were talking, two preschool boys wandered into the garage, where they found a loaded gun. One boy shot the other. The court ruled that although homeowners cannot be expected to make their homes childproof, those who have reason to expect children to come around--such as the couple who sold raspberries from their home--should expect children to act on childish impulses and should take steps to protect them.

The message is clear: If there is a way in, a child may find it and may get injured, and you may be liable. That's why precautions such as fences, locked gates, and swimming pool covers--and good liability insurance--are so important.