Child trespassers and the attractive nuisance rule

After a child died while burrowning into a sand pile on the contractor's premises, the Court had to evaluate the duty owed children by the owner of the property.

  The wrongful death claim in Estate of Fedewa v. Clancy Contracting had been dismissed by the trial court on the assumption that the owner owed no duty to a trespassing child.  The Court of Appeals reversed, establishing several principles that required reconsideration.  First, the court noted the long-standing rule that protects children who are "enticed" on to property by an "attractive nuisance".  Even if the children are trespassers, the landowner remains responsible for injuries suffered if the condition on the land is one which the possessor knows or has reason to know  presents an unreasonable risk of death or serious injury to children attracted to the condition.

The Court also noted that children were apparently tolerated on the premises which was allegedly not effectively marked nor was entry restricted.  In this case, the children may have been licensees who are tolerated, rather than trespassers who are not.

In either case, the Court held that the landowner's duty to the kids may have been greater than the duty owed to normal trespassers.  In the latter situation, the landowner is only responsible for wilful and wanton misconduct.  The case was returned to the trial court for the jury to decide the various factual issues inherent in this situation which had been overlooked by the Court.