Do you own a home? Do you own a business? Do you lay awake at night wondering about liability?
While the answer to the first of these two questions may be yes, undoubtedly, the answer to the last is probably no. Most of us are not losing sleep over liability concerns. However, if you are a homeowner or business owner/manager or other professional you may have some questions about just how much liability you are exposed to.
Liability Begins with Duty
The first question that a Massachusetts homeowner or businessowner must ask themselves is, what duty do I owe someone who is on my property. While the complete answer to this question is far beyond the scope of this article, the general area of interest to most people relates to the duty owed to a trespasser.
Generally speaking, a property owner is obliged to simply avoid harming the trespasser willfully or wantonly. As a practical matter, this general rule as applied to trespassing means that if a person enters upon your property and become injured as a result of being on your property, a lawsuit initiated by that person against you will fail provided that the harm cause was not done willfully or wantonly. An example of willful, wanton harm to a trespasser would be the creative application of some type of trap to harm an unsuspecting thief or trespasser. Any use of a device, trap, or other means used for the purpose of harming a trespasser would certainly create liability for the property owner. However, absent such extreme measures, it is unlikely that the property owner would be liable for the average trespasser who becomes injured on the owner’s property by tripping over a fallen tree, for example.
On the other hand, a different type of duty is created in the property owner in Massachusetts who, due to the owner’s negligence, fails to maintain safety on their property. This duty applies primarily to persons who are not trespassing but have been invited onto the property. For example, if a member of the public walks into your store while your employees are in the midst of a busy day of stocking after a product delivery and boxes, carts, and other hazards litter the walkway, liability may arise if a personal injury occurs due to the negligence of an employee.
When You May be Liable for an Injury to a Trespasser in Massachusetts
There is a theory in law known as the attractive nuisance doctrine. The bottom line in this legal doctrine is that when a property owner has a hazardous condition present on their property, and a child is injured as a result of an injury sustained during an interaction with that condition, the property owner is liable. The classic example of an attractive nuisance is a swimming pool in a private homeowner’s property.
Over 3,000 Deaths in Four Years Running in Massachusetts
The latest statistics reported from the Centers for Disease Control on leading causes of deaths in Massachusetts, report that accidents as the third leading cause of death in Massachusetts residents over a four year period, numbering over 3,000 deaths nearly every year. Some of those deaths, undoubtedly, are caused by swimming pools. When a property owner has a swimming pool, the failure to have a secure fence around the pool that is kept locked at all times would create liability under the attractive nuisance doctrine. Similarly, unlocked shed which contain lawn mower, chainsaws and other equipment that are easily accessible might be the source of liability for the homeowner under the attractive nuisance doctrine.
How do I Avoid Liability Under the Attractive Nuisance Doctrine?
The best way to manage liability as a property owner is to take reasonable precautions to ensure that no child can access the hazardous condition in question. This solution is particularly true if the hazard is attractive to children. Simply posting no trespass signs or erecting a flimsy fence or other barrier is unlikely to be seen by a court in Massachusetts as an effective remedy or defense to failing to protect children from an attractive nuisance. Instead, consider any resources spent on managing this risk as another cost of home or property ownership. Contrast the cost of a new fence with the expenses associated with a lawsuit, not to mention the obvious concern for the welfare of children.
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