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The Tennessee legislature recently addressed the duty of a possessor of real property to adult and child trespassers. The legislature adopted Public Chapter No. 922 which was signed into law by Governor Bill Haslam on May 10, 2012. This Act established T.C.A. § 29-34-208 and is effective on the date the bill was signed into law, May 10, 2012. This post will address the portion of this bill that pertains to the responsibility of a possessor of real property to child trespassers. Child trespassers are treated differently from adult trespassers in this statute. A prior post addressed the duty for adult trespassers.
The new T.C.A. § 29-34-208 (a), (c) & (d) provide as follows:
(a) As used in this section:
(1) “Possessor of real property” means the owner, lessee, renter, or other lawful occupant of real property; and
(2) “Trespasser” means a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405--39-14-407.
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(c) Notwithstanding subsection (b), a possessor of real property is subject to liability for physical injury or death to a child trespasser if:
(1) The possessor maintained a dangerous condition that was not a natural condition and the possessor knew or should have known the condition posed a risk of death or serious bodily harm to trespassing children;
(2) The possessor knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition or because children regularly use the property as a playground;
(3) The dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the risk;
(4) The usefulness to the possessor of maintaining the dangerous condition and the burden of eliminating the danger were significantly outweighed by the risk of harm to children who would foreseeably trespass onto the property; and
(5) The possessor failed to use reasonable care to eliminate the danger or otherwise protect the children.
(d) This section shall not be construed to create or increase the liability of any possessor of real property or to affect any immunities from or defenses to liability established by another section of the codes or available at common law to which a possessor of real property may be entitled.
This statute is an attempt to codify existing Tennessee case law on the “attractive nuisance doctrine” or “playground doctrine”. There are some minor changes between the language in the case law and this statute; however, the statute is actually relatively consistent with the prior case law. Essentially, a possessor of real property is liable for the physical injury or death of a child trespasser if the five specific elements are present as found in subsection (c). These five elements, in short, are: (1) maintaining a dangerous condition; (2) knowledge of children likely playing in area; (3) hidden danger; (4) usefulness of condition (balancing test); (5) lack of reasonable care.
All five elements in this statute must be present to hold a possessor of real property responsible for the physical injury or death of a child trespasser. As a result, from a defense perspective, the defense attorney only needs to establish that one of the five elements are not present to prevent the defendant from being liable for the child’s physical injury or death. This statute must be considered whenever there is a Tennessee premises liability case that involves a child who is injured when the child does not have permission to be on the premises. There is heightened responsibility for a possessor of real property when a child is involved in a trespass.
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