If a child is injured while trespassing in my swimming pool, can I be held responsible?

Question

If a child is injured while trespassing in my swimming pool, can I be held responsible?

Answer

You might be liable, depending on  whether your state has legislated  "attractive nuisance" laws, and if so, what those laws say about homeowner liability when a trespassing child is injured.

"Attractive nuisance" laws  are intended to protect children who are on someone else's property and,  technically,  trespassing. The underlying premise of these laws is that, unlike adult trespassers, children do not understand the  nature of  trespassing, and when some aspect of  a homeowner's property  might attract children --  such as the presence of a  swimming pool --  a property owner may be required to take reasonable steps to safeguard children in case  they  come onto the property.

Bottom line:  As a property owner, you may  have a legal duty to inspect your property to determine if any potentially dangerous conditions exist that might attract children, and  to take reasonable steps to correct or minimize any potential hazard to a trespassing child. If you do not take these measures, you may be liable for any injury to  a trespassing child.

State laws will vary on this topic, but typically, a homeowner will be liable in this situation if it is shown that  1) the homeowner  knew or should have known that young children were likely to trespass on  their property where a dangerous condition existed, and 2)  the homeowner  knew or should have known that young children might not recognize  the inherent risk of the dangerous condition.

In your case, you can protect against a trespassing child by making sure the pool is drained when not in use,  by installing a childproof pool cover  over the pool, or by surrounding the pool with a sturdy and sufficiently high fence.

Homeowners and other property owners should maintain homeowner's insurance to protect against possible liability for injuries to visitors. Keep in mind that, while  an adult trespasser would likely not be able to hold you liable for any injuries that occur on your property,  the rules are very different when it comes to injuries to child trespassers.  

by:  , J.D.

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