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Massachusetts Court Discusses Liability Under the Child Trespasser Statute

In Massachusetts, the duty a property owner owes to visitors of the property depends in part on the status of the visitor. For example, property owners owe a minimal duty to trespassers as opposed to those lawfully permitted to enter the property. There is an exception for child trespassers, however, who are owed greater protection from harm. Recently, the Appeals Court of Massachusetts, Essex, discussed what duties property owners owe child trespassers, in a case in which a child was harmed after unlawfully entering a property. If you or your child were injured on another person’s property it is prudent to meet with a seasoned Massachusetts personal injury attorney as soon as possible to discuss your potential causes of action.

Facts of the Case and Procedural Background

Reportedly, the defendant owned an apartment complex that abutted railroad tracks. A fence separated the defendant’s property from the tracks, but there were large gaps and holes in the fence that adults and children used to pass through the property. The plaintiff alleged the defendant was aware that people used the holes and gaps in the fence to access the adjacent property but did not repair the fence.

It is alleged that the plaintiff, a thirteen-year-old girl, walked through the fence and over the railroad tracks with a friend to go to a nearby plaza to go shopping. On the way back from their shopping trip, the friend was struck by a train. The plaintiff attempted to perform CPR on the friend, but the friend died from her injuries.

The plaintiff filed a lawsuit against the defendant under the child trespasser statute, alleging the defendant negligently maintained the fence, and thereby caused her physical and psychological injuries. The plaintiff also filed a negligent infliction of emotional distress claim. The defendant filed a motion to dismiss, which the court granted. Plaintiff then appealed.

Massachusetts Child Trespasser Statute

The Massachusetts child trespasser statute creates liability to child trespassers under a theory of negligence for artificial conditions for which the landowner is responsible. Specifically, a landowner that maintains an artificial condition on its land will be held liable for physical harm sustained by trespassing children if the landowner has reason to know that children are likely to trespass, and the landowner knows or should know the condition creates an unreasonable risk of harm.

Parties seeking damages under the child trespasser statute must also show that the injured child did not realize the risk involved and that the landowners’ burden of eliminating the danger is slight when compared with the risk, but the landowner failed to exercise reasonable care to eliminate the danger.

In the subject case, the court found that the plaintiff adequately asserted a claim for liability under the child trespasser statute in the complaint, and that contrary to the defendant’s argument, it could be asserted as a standalone cause of action. Thus, the court reversed the trial court ruling.

Meet with a Skilled Injury Attorney to Discuss Your Case

If you or a loved one were injured on another person’s property it is crucial to meet with a skilled Massachusetts personal injury attorney to discuss your case. The knowledgeable attorneys of Karsner & Meehan will analyze the circumstances surrounding the harm of you or your loved one and advise you of whether you may be able to pursue damages.  You can contact us through our form online or at 508-822-6600 to set up a consultation to discuss your case.