Throughout most of the state’s history, California subscribed to the doctrine that the legal status of the injured person made a difference when someone was injured on residential property in a slip and fall or similar accident. Under that approach, a person considered a trespasser—someone on the property without the permission or at the invitation of the owner—had no legal right to recover for any losses suffered.
This rule, however, did not apply to children who were drawn to the property by some feature that a child could not resist…a pile of gravel or sand from an excavation, an old tractor or motor vehicle, or an open pit…could still recover compensation for injuries, even if they entered the property without the permission of the owner. This concept was known as the “attractive nuisance” rule and is still the law in many jurisdictions…but not in California. It was rejected by the courts more than 40 years ago, in Beard v. Atchison, Topeka & Santa Fe Railway (1970).
So what does that mean for children who have wandered onto private property, lured by something too irresistible to ignore? Under California law, it won’t matter whether your child was legally on the property, and there won’t be any presumption that, because the trespasser was a minor, he or she will be treated differently from any other trespasser. There’s good news, though—in California, a trespasser is not automatically barred from recovery. Instead, the injured person’s status as an invitee, a licensee or a trespasser is one of the factors considered by the court when determining liability.
Under California law as it currently exists, when a person suffers injury on someone else’s property, the court will consider the nature of the dangerous condition, the expectations that others would be injured because of the dangerous condition, the difficulty of fixing the dangerous situation, and the legal status of the injured person, as well as other potential factors. With a child, the court can also consider whether the property owner knew or should have known that a minor would be drawn to the property by an “attractive nuisance,” as well as any measures that were or could have been taken to alleviate the danger.
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