Florida Injury Lawyer Blog
In Florida, property owners are generally liable for dangerous conditions that are not obvious and cause harm to those who are lawfully present. There are varying degrees of a property owner’s responsibility in this area of law – known as premises liability – depending on the status of the individual who was hurt. For example, someone who is invited onto the property for the financial benefit of the property owner is owed a higher duty of care than someone who is trespassing. 
In most cases, trespassers are not owed any duty of care, except that property owners can’t intentionally harm them or set traps. When it comes to children, though, the standards are different. Children are generally owed a greater duty of care than adults in the same situation, and this is true also when children are trespassing. The doctrine of attractive nuisance, for example, holds that if property owners maintain dangerous conditions likely to attract young children to the site, the property owner must be sensitive to that potential danger (which a child may not appreciate) by posting a warning or taking some other affirmative steps to protect children from that danger.
Recently in Minnesota, the state supreme court there considered property owner liability in the case where a 4-year-old boy nearly drowned in the Mississippi River and suffered severe and permanent brain damage.
The question before the court was whether an appellate court erred in holding – as a matter of law – that it was obvious to a reasonable 4-year-old child that it was dangerous to return to a river to swim alone. The court ruled that the question of foreseeability is one of fact that should have been answered by a jury, not a matter of law to be determined by a judge.
The child injury occurred in the summer of 2003 when the mother of two children, ages 4 and 3, left her children with her mother for the weekend. The children’s grandmother took the children to a family party outdoors at defendant’s house in celebration of a relative’s birthday. The property was abutted by the rocky shoreline of the Mississippi River. It was a hot day. Several of the children wanted to go swimming, including the 4-year-old. Finally, a group of adults agreed to go with the children – six adults and nine children who were in or near the river. Although property owner had life jackets, they were not made available for the guests.
After about a half hour, everyone – including the young boy, were told to get out of the water, at least for the time being, because it was time to eat. The little boy remained in his swimwear. About 10 minutes later, though, the family released the little boy was missing. They started searching for him, and ultimately found him 3 minutes later, face down in the river. He suffered severe brain damage.
The boy’s mother sued property owner, alleging he breached his duty of care to the child, an invited guest, because he failed to prevent the child’s access to the water, failed to supervise him, failed to have a safety plan in place for child gusts and failed to warn the child of the foreseeable dangers of the property.
Defendant moved for summary judgment, arguing he had no duty of care to the boy because the danger of the river would be obvious to a 4-year-old and the injury was not foreseeable. It was granted.
The state supreme court noted that children are required to exercise a degree of care that would ordinarily be exercised by another of that age, experience and intelligence under the same or similar circumstances. The court found there were undisputed facts that would generate a reasonable inference the danger wasn’t obvious to the child – it was a hot day, he’d already been swimming, he enjoyed swimming, he stayed in his swimsuit. While previous cases have indicated that young children have a natural fear of water, this state supreme court found that to be a “gross generalization” that ignores numerous circumstances individual to that child and the type and condition of the water. Further, dangers that may be obvious to adults aren’t always fully appreciated by children – particularly young children, as in this case.
Defendant sought from the court a new rule of law that landowners in that state do not owe a duty of care to child invitees if they enter the land accompanied by a parent or guardian. The court declined that request, finding no precedent would support that rule and it would undermine the recognized system of comparative fault. Still, there would be nothing to prevent defendant from arguing to a jury that because he understood the boy to be supervised by others, he wasn’t negligent or that his actions weren’t the proximate cause of the boy’s injuries. The court did rule, however, that plaintiff was entitled to a trial.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Additional Resources:
Senogles v. Carlson, Sept. 27, 2017, Minnesota Supreme Court
More Blog Entries:
Naples DUI Death, Injuries Results in Criminal Conviction, Sept. 8, 2017, Fort Myers Child Injury Lawyer Blog
