Property owners owe a special duty to keep their properties safe from hazards that can cause injury to children or result in their death, even if the children were trespassing at the time. This special duty is known as the “attractive nuisance doctrine” and it applies most commonly to property features like swimming pools, construction sites, trampolines, and large piles of dirt, rocks, or sand.
If your child has been hurt or suffered a fatal injury on another person’s property, a Scottsbluff child injury lawyer may help you seek and recover monetary damages from the owner or occupier of the land.
Nebraska’s Attractive Nuisance Doctrine
In 1972, the Nebraska Supreme Court clarified our state’s attractive nuisance doctrine. The doctrine states that a possessor of land is subject to liability for harm caused by an artificial condition to trespassing children if all of the following are true:
- The possessor knows or should know that children are likely to trespass where the condition exists,
- The possessor knows (or has reason to know) and realizes (or should realize) that the condition involves an unreasonable risk of death or serious bodily harm to children,
- That the burden of eliminating the danger is slight compared to the risk to children, AND
- The possessor fails to exercise reasonable care to eliminate the danger or protect children.
The attractive nuisance doctrine exists because children often cannot recognize dangers and to protect themselves from them, especially when the danger is “attractive” to children. Landowners must take reasonable steps to keep children safe from those “attractive” dangers, such as by putting up a fence, locking the area surrounding the danger, or removing the danger entirely.
When courts analyze a legal claim involving the attractive nuisance doctrine, they look to several factors to determine whether the child could have recognized the danger or protected herself from it, including the child’s:
- Age and intelligence
- Ability/capacity to discover, observe, understand, or appreciate the nature of the danger
- Ability to avoid the condition
The court may also look to other specific facts of the case. No single factor controls the outcome under Nebraska law.
After the Injury
An attractive nuisance lawsuit is a personal injury suit. Under Nebraska law, you must file your suit within four years of the date of the accident. Contact a child injury lawyer soon to receive a comprehensive analysis of your case and informed advice about how and whether to proceed.
Types of Damages
Each case is unique and requires its own legal analysis, but if your child was injured on someone else’s land because of an “attractive nuisance,” you may have the right to recover some or all of the types of monetary damages below.
- Initial and ongoing medical costs – Depending on the severity of your child’s injury, you may have incurred significant medical costs, both from his or her initial treatment and hospital stay and for ongoing or follow-up doctor’s appointments, seeking the care of a specialist, or maybe even subsequent surgeries.
- Therapy or rehabilitation – Some injuries require physical or occupational therapy to help the injured person regain motor function or her ability to carry out activities of daily living. You may also be able to recover for costs associated with mental health therapy if the child’s injuries cause mental trauma and she now suffers symptoms such as post-traumatic stress disorder (PTSD), anxiety, overwhelming fear, or paranoia as a result of the injury.
- Medication or medical devices and equipment – If your child now requires a medication regime or the use of specialized medical equipment such as a wheelchair, prosthetic limb or walking cane, a child injury attorney may be able to help you recover those financial costs.
- Pain and suffering – While you won’t receive a medical bill for the mental or physical pain and suffering your child has experienced, it is a cost of your child’s injury. These kinds of damages are intended to include compensation for both physical pain and mental anguish. There is no set way to calculate these damages, but sometimes it will involve multiplying medical or other economic damages by a factor of one or more, or by using a per diem approach which involves awarding a daily amount for each day the injured child has suffered pain until recovery. Other methods may not be formulaic at all. An experienced child injury attorney can help you determine the best way to calculate your child’s pain and suffering damages.
- Lost wages – If the child was employed at the time of the accident, she may be able to recover for time missed at work to seek medical care or because of an inability to work at all. As her parent, you may also be able to collect compensation for the time you missed work at the time of the initial injury or as a result of your having to care for your child, take her to medical appointments, or accept a lower-paying job to accommodate your child’s medical needs.
Document and keep records of all costs you have incurred because of your child’s injury resulting from an attractive nuisance. This evidence may prove crucial in demonstrating to insurance companies or a court the amount of damages you deserve to recover.
If your child was fatally injured, you may be able to bring a wrongful death lawsuit against the possessor of the land. This type of suit must be filed within 2 years of your child’s death. Possible damages in a wrongful death suit may include compensation for medical and funeral costs and for the loss of companionship with your child.
Contact a Nebraska Child Injury Attorney
Irresponsible landowners who fail to properly protect children from “attractive” dangers on their properties can seriously and even fatally injure children. If your child has been injured, contact the experienced and compassionate attorneys at The Robert Pahlke Law Group. Together we have over 85 years of experience representing injured people in Nebraska and helping them receive the compensation they deserve for their injuries. While no two cases are identical and results are never guaranteed, The Robert Pahlke Law Group has a proven track record of success for its clients.
Contact us online or at (308) 633-4444 today for a free consultation and case evaluation.