Let’s suppose that someone wanders onto a construction site without fences or other barriers preventing entry. This person climbs onto a large piece of dangerous machinery, falls off, and injures himself. Is the owner or possessor of the construction site liable for that person’s injuries?
If the injured person is an adult, the land possessor is not liable for his injuries. Under normal circumstances, a possessor of property has no duty of reasonable care towards a person who trespasses upon his property, even if the trespasser injures himself or herself as a result. If the injured person is a child, however, the land possessor may be liable. A child, unlike an adult, may not have the reasoning skills and judgment necessary to avoid dangerous conditions. In fact, children will often be attracted by strange and new things that may also present a danger to them.
Florida state law recognizes and accounts for this fact by shifting liability for injury to a child trespasser to the possessor of the land if that land contains an attractive nuisance that enticed the child onto his land and caused the child’s injury. This shifting of liability also requires that the possessor of the land knew or should have known that said dangerous condition presented a danger to children and that children were likely to trespass on the land in question. Finally, the plaintiff must show that the land possessor could have eliminated the dangerous condition or blocked it off from children and that he failed to exercise reasonable care by not doing so.
Traditionally, attractive nuisances include such conditions as uncovered swimming pools and abandoned vehicles. Florida law also specifies several objects that must be treated as attractive nuisances to children, including abandoned iceboxes, refrigerators, washer and dryer units, and other closable or lockable objects that create an airtight seal. This law is designed to cover objects in which a child may become trapped and which may lead to injury or death by suffocation.
What can be done to protect land possessors from liability for the injuries of children who trespass on their property? Common sense is the guiding principle in this case. A land possessor who exercises reasonable care in protecting children from dangerous conditions on his property by removing such conditions or physically blocking them off from access should be able to both protect children from being injured and protect himself from liability for the injuries of trespassers on his property.
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