Hospitality claims involving children differ from adult claims because generally the law does not expect children to comprehend the dangers they might face. As a result, the common law has recognized the doctrine of attractive nuisance. This doctrine confers a duty upon landowners who have reason to believe that children may come onto their property. In such case, the landowner has a duty to prevent the harm. If such duty is breached, the landowner may be found liable. In Texas the legislature codified the attractive nuisance doctrine: the relevant statute read
“An owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if:
(1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;
(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children;
(3) the injured child, because of the child’s youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and
(5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child”
Tx Civ Prac & Rem § 75.007 (c)
One of the most common examples of attractive nuisance cases is in the case of swimming pools. In Florida, drowning is the leading cause of death for children between the ages of 1-4 years. Nationally, according to the CDC, about 1 in 5 who die from drowning are minors: 14 and under. See https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html. After an incident involving a minor and accidental drowning, parents may have claims for negligence, wrongful death, and attractive nuisance. In general, innkeepers have a duty to take reasonable steps to minimize dangers within their control. It follows; many states require operators of public pools to maintain signage around pool areas.
After a claim involving minor children, a landowner must respond to the plaintiff’s proof of the elements of the prima facie case that are applicable to a general negligence action. When it can, he/she should challenge applicability of statute or ordinance that was allegedly violated.
On the issue of comparative negligence, depending on the child’s age, some states will consider the child’s own negligence. Additionally, it is essential that the issue of proximate causation is properly assessed. This includes an analysis on the cause of injuries including the action or inaction on the part of the minor’s parents.
Other important topics in the handling of claims involving minors include knowing jurisdictional requirements involving minors such as: age of reason, negligence standards applicable and resolution requirements and thresholds.
Waiver and Releases
Although waivers and releases are very common, there are some factors that will affect the legal effectiveness of waivers & releases involving minors including:
- Existing Statutory Scheme (state laws)
- Prior Case Law in State
- Case Law From Other States or Jurisdictions
- Issues Relating to “drafting”