The issue of children and the duty the public has toward them has been a constant issue in tort law. There are many uncertainties when deciding how much responsibility and knowledge a child should have by a certain age, and the range of development may be wide. This is especially true when children enter upon the property of others. Many are invitees, licensees, or even trespassers.

The overarching area of law governing children on property is premises liability. In general, when someone steps onto property they have a reasonable expectation of not being injured, and those who own or reside on the land have a duty to maintain a safe environment. Typical injuries that can occur include falls, animal bites, and accidents.

Depending on the state, the law may focus more on either the status of the visitor or the condition of the premises. It is prudent to seek an attorney immediately after being injured for a consultation. In Illinois, the law has changed from looking at the status of the visitor to adopting a “reasonable care” standard regardless of the guest status. This is to be more in line with the Restatement (Third) of Torts, a pre-eminent treatise on American common law. Since the elimination of the distinction, a duty of reasonable care is owed to all entrants onto property, even trespassers, under the circumstances. Some circumstances, such as maintaining dangerous premises, only need a duty to warn all who may enter the land and that would suffice to make the condition “reasonably safe”. The only exception from this new standard is the “flagrant trespasser”. The definition of a flagrant trespasser is currently being decided on a case by case basis, but the duty owed is not to intentionally create a harmful environment and to exercise reasonable care if such a trespasser were in peril.

A recent case, Choate v. Indiana Harbor Belt R.R. Co. (2011), reaffirmed the Illinois standard that the attractive nuisance doctrine does not apply in the state. The attractive nuisance doctrine has generally imposed a greater duty on landowners who know or should know that their premises are especially attractive to children. The rule in Illinois means that no duty for landowners is owed to children for dangers that are open and obvious that children are expected to appreciate and avoid. The test for an open and obvious danger has an objective and subjective component. Objectively, a danger is obvious if children of similar age and experience would be able to appreciate the dangers on the premises. Subjectively, a danger is obvious to trespassing children if they possess an understanding and appreciation of the dangerous condition that is greater than peers of their age. Because of the subjective component, many cases involving children will be considered on a case by case basis.

This article is for informational purposes only and is not to be construed as legal advice. Your case may be different. Consult an attorney in your area for further guidance. If you have a child that was injured in an accident, please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.