Ask any parent and they'll tell you: children can get hurt anywhere. But when a child is injured on someone else’s property, things can get a little more complicated. Are the parents or the homeowners responsible for the expenses that arise from an injury that occurs on someone else's swing set or play area? This article addresses the general obligation of homeowners to keep their property safe, special rules that can arise when it comes to child trespassers, and the prospect of making a personal injury claim involving swing set injuries.
Homeowner Liability
Homeowners have a responsibility to exercise care for the safety of most visitors by keeping their property reasonably free of hazardous conditions that could cause injury, and by fixing dangerous conditions within a reasonable amount of time. Failure to meet these legal obligations -- which vary according to the circumstances -- can result in liability for injuries (the legal term for this theory of liability is premises liability).
Note that the duty of the homeowner typically varies depending on the legal status of the visitor. Different legal obligations are owed to family members, social guests, solicitors, contractors doing work on your house, and shoppers at your yard sale.
A homeowner's duty to a trespasser -- someone who enters another’s property without the permission or authorization of the owner -- is very low compared to his or her duty to invitees and others. As a general rule, homeowners are not liable for the injuries of trespassers and do not have to ensure the safety of trespassers on their property. Learn more about homeowner liability for injuries to trespassers.
Trespassing Children & Attractive Nuisances
An exception to the general rule that homeowners are not liable to trespassers exists when the trespassers are children. When children trespass, homeowners do have a duty to ensure that their property is free of certain dangerous conditions that could be seen as enticing to a child, such as an unfenced swimming pool. Such hazards are often referred to as “attractive nuisances.”
Accordingly, homeowners are responsible for inspecting their property for potentially dangerous conditions that might attract children onto their property. If such conditions exist, homeowners must provide a warning, or immediately correct or remove the potential hazard, or take steps to make it as safe as possible. If a child is injured due to an “attractive nuisance” that has not been appropriately remedied, then the homeowner will probably be responsible for any resulting damages. Therefore, when a trespassing child is injured on a neighbor’s swing set, the homeowner may be liable, if no steps were taken to make the area reasonably safe or keep children out.
Determining Fault
If a child is on the property and playing on the swing set with the permission of the homeowner, then the issue becomes whether or not the neighbor was somehow negligent. In order to prove negligence, there must have been both a foreseeable danger and a lack of reasonable care (this is a bit of a simplification of the concept).
For instance, if the swing set was broken, and the homeowner knew that but allowed the child to play on it anyway, then the homeowner would probably be held responsible for any resulting injury. Or, if a small child was allowed to play unsupervised on a swing set intended for much older children, then the homeowner might also be held liable. As with any negligence claim, you will have to establish fault by gathering evidence, including photos of the accident scene and your child’s injuries, witness statements, medical records, etc.
(Note: Another liability issue may arise if the swing set was somehow defective or unreasonably dangerous based on a design or manufacturing error. In that situation, parents may have a viable product liability claim against the seller and/or manufacturer of the swing set.)
Compensation & Homeowners’ Insurance
Any settlement you receive for your child’s injury will likely be obtained by filing a third-party insurance claim through your neighbor’s homeowners’ insurance policy (or by filing a lawsuit against your neighbor, in which case the homeowner's insurance company would have a duty to defend the lawsuit).
Most homeowners’ insurance policies include what is called “med pay” coverage, which will pay for your child’s medical expenses -- up to the med pay limits -- regardless of how the injury occurred.
Personal liability coverage kicks in where the fault of the homeowner has been established. If your neighbor’s negligence led to your child’s injury, then personal liability coverage will pay for your child’s medical bills, pain and suffering, out-of-pocket expenses and even your lost wages, should you miss work to take care of your child (again, up to the policy limits).
Because every case is different, you may want to consult an experienced personal injury attorney to discuss your options and decide which course of action makes the most sense.