Kentucky's Attractive Nuisance Doctrine
Children do childish things. As a community, we have a duty to protect children who might enter our property even when the child enters our property without permission. For this reason, dangerous things such a heavy equipment, construction materials, and swimming pools must be maintained in a way that protects a child that wonders onto the property.
The attractive nuisance doctrine in Kentucky provides that a possessor of land may be subject to liability if a child is physically harmed, even when the child is a trespasser, where it is unlikely that the child will appreciate the risk involved in his presence or intermeddling upon the property.
Attorneys in Kentucky for the Attractive Nuisance Doctrine
The premises liability attorneys in Northern Kentucky at Steiden Law Offices, help parents, individually and as parents of a minor child, in a negligence action against anyone who contributed to a person or a child's injury by acting in a negligent way. With offices in Florence and Covington, we help clients throughout Northern Kentucky fight for justice after a serious injury.
Contact our attorneys about bringing an action personal injury arising out of negligence against another person or business who caused injuries to you or a loved one. Call us to learn more about premises liability, slip and fall cases, the attractive nuisance doctrine, and the tender age presumption. Call today.
Premises Liability Claims for the Child Trespasser
In order to prevail in a negligence action, a plaintiff must prove the existence of a duty, breach thereof, causation, and damages. Whether a duty of care exists is a question of law for the court. While general negligence law requires the existence of a duty, premises liability law supplies the nature and scope of that duty when dealing with injuries on another person's land.
Ordinarily, the status of the person coming onto the land determines the degree of care required by the land possessor. Kentucky classifies a visitor upon property as one of the following:
- licensee; or
A person who comes on the property without any legal right to do so is a trespasser. Under KRS 2 381.232, the owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.
The Supreme Court of Kentucky, in Kirschner by Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 842 (Ky. 1988), defined the phrase “injuries which are intentionally inflicted” to mean injuries inflicted by “willful, wanton, or reckless conduct.” For this reason, an owner or occupant of land owes no duty to a “trespasser to keep the premises safe, but the owner or occupant must refrain from inflicting or exposing him to wanton or willful injury or from setting a trap for him."
Tender-Years Element of the Attractive Nuisance Doctrine
Under Kentucky law, certain protections are afforded by the tender-years element of the doctrine. Under this doctrine, the courts in Kentucky have historically recognized a landowner's duty of care to children of tender years. In fact, the statute expressly exempts those persons who come within the scope of the “attractive nuisance” doctrine from the statutory rule that no duty generally is owed to a trespasser. KRS 381.231(1).
Although the attractive nuisance doctrine provides that a possessor of land may be subject to liability if a child is physically harmed, even when the child is a trespasser, where it is unlikely that the child will appreciate the risk involved in his presence or intermeddling upon the property, the courts in Kentucky have established a presumption that a child of fourteen is presumptively beyond the protection afforded by the tender-years element of the attractive nuisance doctrine.
This article was last updated on Friday, October 6, 2017.