Even when parents tell their children not to go in someone else’s yard without an invitation, curiosity, peer pressure or temptation may get the better of them. If your child sustains an injury while trespassing, even though he or she was in the wrong, the property owner could still be liable for the injury.
According to the New Jersey Courts, here are the elements that must be present in order for you to hold the property owner responsible for the injury.
- Likelihood of young trespassers
A property owner must have a good reason to suspect that a child will want to trespass because of the condition.
- Risk of serious or fatal injuries
The owner should know or have good reason to know that the condition poses a serious threat to the safety of a child.
Your child must be young enough that he or she conceivably may not have realized that there was a condition on the property that could cause him or her harm, or that the condition posed a risk.
In general, a judge or jury will assume that a child under 7 years old does not have the capacity to act negligently. However, the owner may argue that your child did know of the danger and/or had the experience necessary to avoid it.
- Removal vs risk of an artificial condition
If the owner could eliminate the danger without interfering with his or her enjoyment of the property, and doing so would not be an unreasonable burden, then the law may agree that the owner had a responsibility to eliminate the danger.
It is important to note that the owner is not liable for injuries that happen due to a natural condition. It must be a hazardous condition that the owner or some third party created. Further, the owner must have known the condition existed and that it posed harm if a child trespassed and encountered it. However, the owner does not have a legal obligation to regularly inspect the property for dangerous artificial conditions.
- Reasonable care
Finally, an owner must also act in the same manner that any reasonable person would under those circumstances, or else the judge or jury will not find him or her liable for the injury to your child.