Articles Posted in Personal Injury

     “Please be careful” is a continuous warning parents relay to their children, but children are often faced with many risks that are outside of their—and their parents’ or guardians’—control.  This is especially true when minor children visit businesses that specifically cater as places of amusement, where things such as other rambunctious patrons, faulty equipment, poorly-trained employees, or dangerous premises can potentially cause injury, no matter how careful an individual child or their guardian may be.  Many parents and guardians question the validity of waivers they are often required to sign on behalf of their children. We are often asked, “Is this even legal?”; “Can they actually do that?” or “What does this mean?

     Adults, on the other hand, may feel more confident about their own safety, and might sign the paperwork to engage in an activity without even reading it.  By doing this, however, an adult may be giving up important legal rights—while at the same time placing themselves at the mercy of a for-profit business and its employees.

     When adults and children visit businesses offering activities that present a risk of injury, patrons are almost always required to sign a pre-injury release and waiver.  Businesses such as trampoline parks, climbing gyms, rafting companies, paintball parks, and other entertainment venues use these waivers both as an attempt to limit their liability for injuries and to discourage claims.  The most common forms describe the risks of engaging in the activity and require the participant to assume any and all responsibility for injuries or death, as well as releasing the business from liability and waiving the right to make any claims.

Under most circumstances, a landowner in Alabama has very minimal obligation to trespassers. Typically, a landowner is only required to refrain from creating traps or otherwise intentionally injuring anyone who is trespassing or on their land without permission.  With child trespassers, however, landowners owe a special duty to take reasonable steps to prevent injuries from hazards that may be considered an “attractive nuisance.”  An “attractive nuisance” is an artificial condition – meaning something made or done by human effort – that is potentially dangerous and that could potentially lure children onto the land.  The most common example of an attractive nuisance is a residential swimming pool, but Alabama courts have also held that a construction site, pit excavation, and utility tower could all also be considered attractive nuisances.  Alabama law places significant importance on the safety of children, and a landowner can be held liable for any injuries or deaths that occur if the landowner failed to take reasonable steps to keep children – even trespassers –  away from hazards presented by an attractive nuisance.

Under Alabama law, a landowner will be held liable for an injury to a child that occurs on their land if (1) the landowner knew or should have known that children would come onto the land; (2) the landowner knew or should have known that something on the land could pose an unreasonable risk of death or injury to a child; (3) that children were unlikely to appreciate the risk of the danger; and (4) that the landowner failed to take reasonable steps to secure the hazard and prevent injuries to children.  In an attractive nuisance case, the court might also look at the age, intelligence, and maturity of an injured child to determine whether or not the child should have appreciated the danger they faced.  In other words, the court is much more likely to find that a landowner is legally responsible if they failed to take reasonable steps to prevent a young child from accessing a swimming pool, than if a teenager intentionally climbed a fence and jumped into the pool without permission, despite knowing the potential risks.

It is also important to note that, under most circumstances, only a man-made “artificial condition” will be considered as an attractive nuisance, while “natural features” such as streams or caves normally will not be viewed as a potential attractive nuisance.  Making changes to the natural landscape, however, like digging an artificial pond or adding a ladder to access a cave entrance, could be considered as creating artificial conditions that may be attractive nuisances that could attract curious or mischievous children into a dangerous situation.