Not Just Child’s Play: TBI and Landowner Liability

On Behalf of | May 18, 2016 | Brain & Spine Injury

As another school year draws to a close, South Central Texas children will be spending more time on area playgrounds. According to a recent report, these children risk traumatic brain injury almost every time they slide down slides, climb on monkey bars, or swing on swings.

Between 2001 and 2013, over 21,000 children aged 14 and younger were rushed to an emergency room with a TBI. Girls between ages 5 and 9 were the most at-risk group. Only about 4 percent of these victims received any follow-up care, even though injury incidents were higher in the study’s later years.

The study authors strongly recommended that parents inspect the facilities before allowing children to play, especially if they are built atop hard surfaces, like bare ground, asphalt or concrete.

Landowner Liability

Many of these injuries occur at communal playgrounds in common areas at area apartment complexes and housing developments, while others happen at backyard jungle gyms and swing sets. These private owners all have a duty of care that is predicated upon the child’s purpose for being on the land.

  • Trespasser: In most cases, the owner owes almost no duty towards people who are on the land without express permission, but the attractive nuisance doctrine is a major exception. This doctrine applies to construction sites, swimming pools, privately-owned playgrounds, and other areas where children are known to play. In these situations, landowners generally have a duty of reasonable care to keep children safe.
  • Licensee: The landowner has a duty to warn about latent defects, such as loose monkey bars or swing-set chains.
  • Invitees: Most children are on the premises due to the landowner’s express or implied invitation. In these instances, the owner has a duty of reasonable care to keep the property safe.

Some jurisdictions have abandoned the classification system in favor of a blanket duty of reasonable care, but most courts still use the common law approach.

If the landowner breached the applicable legal duty, and that breach caused injury, damages normally include compensation for both economic losses, such as hospital bills, and noneconomic losses, including pain and suffering. Punitive damages may also be available, in some cases.

Children are at serious risk for severe brain injuries. For a free consultation with an experienced New Braunfels personal injury attorney, contact our office. Our law firm has a small-town atmosphere, while maintaining access to nationwide resources.