Now that school's out, there are more children running around the neighborhood. So, we wanted to know about homeowners' liability. We turned to attorney Craig Swapp to get our questions answered.
If children enter my yard uninvited, am I still liable for any injuries or possible death?
"Attractive nuisance" is a term that applies to property that is inherently dangerous and particularly enticing to children. For example, a swimming pool has a strong attraction to many children and could lead to a liability judgment against the pool's owner. The owner must take all necessary steps to prevent accidents, such as building an adequate fence or installing a pool cover/trampoline safety net.
Attractive nuisances can also apply to abandoned cars, piles dirt or stacks of firewood, ditches or holes, horses and other animals, ladders leading to rooftops, etc. In fact, it can be applied to virtually anything on the property of the landowner.
There is no set cutoff point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth. If a child of injured child's age is able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply.
Many homes have trampolines. Am I protected by my homeowners insurance?
Insurance companies have paid great attention to the latest statistics which indicate there are about three million backyard trampolines in use in the United States. Each year over 100,000 accidents involve trampolines (about 20% are spinal injuries), resulting in medical and legal costs exceeding $270 million a year.
Insurance companies have watched the backyard trampolines quickly go from being a non-issue in underwriting to a factor used to disqualify a risk and cancel homeowner insurance policies. Most insurance companies will exclude any liability insurance coverage for household trampolines and will cancel policies when trampolines are seen during a drive-by home inspection.
The main reason insurance carriers started excluding trampolines was in response to a policy statements of the American Academy of Pediatrics (AAP), which states categorically that trampolines should not be used at home, on playgrounds, or in physical education classes (even with the proper safety measures in place).
If you have a backyard trampoline you may want to contact your homeowner insurance company to be sure you have liability in the event someone visiting you home is hurt. If you let your children play at a home with a trampoline make sure you have good medical insurance for your child in the event they are injured because your neighbor or friend may find they don't have liability insurance to cover an injury to your child.
What about swimming pools?
Backyard swimming pools provide serious swimming pool liability. The homeowner can (and probably will) be held responsible for any injuries or deaths that take place in or around the pool, even if the children in question were trespassing, scaled a fence to access it, or otherwise used it without your permission. With or without permission and knowledge, swimming pool liability attaches to the owner of the pool for the safety of anyone using it.
When you own property, you owe a "duty of care," even to trespassers. The "duty of care" means that you cannot create a hazardous situation and are often obligated to prevent, repair, and warn of any hazardous situation. If you have an unattended, unsecured pool, especially one that is easily accessed by wandering children or other strangers, you may be found to have created a hazard and not to have properly taken steps to protect those trespassers to prevent swimming pool liability.
The fact that there is often swimming pool liability for accidental drownings is a primary reason why pools are such a grey area when it comes to home ownership. In fact, a pool can decrease the value of a home if buyers are worried about swimming pool safety or swimming pool liability. While technically a homeowner's insurance policy may offer coverage for a pool, the truth is that any sort of coverage, even though the most comprehensive policy you can purchase, is not necessarily going to be enough to protect you should someone be seriously hurt in your pool. It is practically required that you purchase a separate insurance policy for swimming pool liability, or an umbrella policy for your home, which would allow you to purchase swimming pool liability coverage into the millions of dollars.
Are simple playsets a liability?
You do have a responsibility to use reasonable care to make sure that the set is safe. This means that the screws on the ladder are on tight. It means that if it's a wooden play set that the nails are actually nailed in and not exposed for someone to cut a leg or arm.
If someone falls and hurts themselves then maybe some coverage for the medical bills is available under your homeowners medical care payments policy. (but always check first). As far as lawsuit are concerned, however, you are only liable to someone if you have been careless.
Are you powerless to avoid liability for an "attractive nuisance"?
Not necessarily. There are many efforts you can make. Here are some:
Check your property regularly to spot the types of hazards that might injure others. Depending on the item, consider removing it, moving it away from view, locking it away, or installing secure fencing near it. Ask yourself: Have you been too willing to let children trespass on your property and approach your pools, play sets and trampolines? Keep in mind that if you do, this might make you liable if an injury results from an "attractive nuisance." When you spot a child trespassing on your land, consider the following:
Order the child off of your property. If the problem persists, you can send a letter cautioning the parents to keep the child away, but inviting the parents to contact you in the future to receive your permission before entering your property so that, at a convenient time, you can personally accompany the child and his or her parent on a supervised visit. Your letter can explain that this is the only manner in which you will allow others to enter your property. Keep a copy of this letter.
While putting up a sign to warn children regarding the danger of the land may exempt the landowner from liability, it will not work in all situations. This is particularly true when the child cannot read the sign or does not understand English. Usually the landowner must take some more affirmative steps to protect children.
Fences, pool covers, trampoline safety nets should be installed to make it difficult to access and use your property, but realize that these additions do no protect you from liability.
These efforts, in themselves, may not eliminate your liability completely, but they will help evidence that many precautions you are taking to protect others. Finally, liability insurance cannot prevent liability, but at least proper insurance can protect you should the worst case scenario ever occur. With this in mind, make sure that your insurance is up to date as to types and amounts of coverage. Contact your insurance agent if you have any doubt.
Craig Swapp & Associates is located at 9980 South 330 West #400 in Sandy. (801) 990-1919. You can also visit their website: http://www.craigswapp.com