Generally, landowners owe no duty to trespassers except to refrain from willfully or wantonly injuring them. Pennsylvania law treats trespassing children differently. Landowners and those who occupy land under leases can be held responsible for injuries to children caused by dangerous "artificial" conditions of land that attract children.
Sometimes referred to as "attractive nuisances," such conditions are not natural features of the land, such as streams or cliffs, or trees that can be climbed. Instead, an artificial condition is man-made, such as a building, a construction site, a piece of heavy equipment, or even a man-made ditch. Swimming pools, trampolines, containers, and machinery have all been found to be attractive nuisances.
In common law the plaintiff had to show that the attractive nuisance itself led to the child entering the property, though most jurisdictions now hold that as long as the injury was forseeable by the landowner liability attaches regardless of what drew the child to the property.
Attractive Nuisance Defined
Every artificial condition is not necessarily an attractive nuisance. Only where the owner knows or has reason to know that children are likely to trespass and only when the artificial condition has the potential to cause death or serious bodily injury does an attractive nuisance exist at law. A landowner can be held responsible for injuries suffered by children if the landowner could have eliminated the danger without significant burden and he or she did not exercise reasonable care to eliminate the danger or otherwise protect the children. Finally, attractive nuisance liability is imposed on a landowner only if a child's youth was a factor in his or her not realizing the risks involved.
Attractive nuisance liability has been found where children were injured when the wall on which they were playing at a construction site collapsed, where a child was struck by a rolling gas cylinder when the child was playing near a loading platform, where children regularly trespassed through a gated fence onto a railroad track, and where a child was injured in an abandoned quarry.
Notice Issues
Notice is a particularly important aspect relating to landowner responsibility for child trespassers. Landowners who have any reason to believe children are trespassing should treat this problem with the highest concern if there are any potentially dangerous artificial conditions on the land. Posting both written notices against trespassing and written warnings of danger may be sensible measures to warn and protect potential adult trespassers, but posted notices are of little effect where children are involved.
As far as is practicably possible, children's access to dangerous conditions should be prevented. The securing of construction sites, work equipment, ditches, and buildings is crucial. Gates that can be opened by children or fences that can be easily climbed are not considered adequate security by the courts. A landowner who takes appropriate cautionary measures should consider keeping a written memorandum of what has been done.
Given the tragic consequences for failure to secure property with an attractive nuisance, for the child. for the child's family, and for the landowner found liable for an accident, the investment in securing property is simply the responsible thing to do.