HAVE A CHARLESTON, SC AND SUMMERVILLE, SC PERSONAL INJURY ATTORNEY ON YOUR SIDE
In this article, I am going to address an issue that seems to come around quite often during the holiday season. That is the issue of injuries to children and minors while they are visitors in the homes of persons who are not their parents. This type of personal injury case becomes very prevalent this time of year due to three main causes: First, people are out of their homes for more social gatherings with friends and family; second, parents more often may take the kids to a babysitter's home or leave the kids with a friend while mom and dad attend a Christmas party, and third, people are just out of the home more over the holidays with shopping and of course the kids tag along to the mall and the stores.
In this first article on children and premises liability, I am going to specifically focus on the first two of the three above stated causes. This article will specifically focus on injuries sustained by children who have been invited on to private property owned by individuals who are not their parents (private homes).
SOUTH CAROLINA LAW ON PREMISES LIABILITY: THE FOUR CLASSES
South Carolina Law recognizes four different types of classes when trying to determine the applicable duty of care owed to an individual on private property owned by another party. These classes are as follows:
- Invitee: an invitee is someone who is invited upon the premises strictly for the benefit of the property owner and / or for a commercial purpose.
- The most common example of when a person is an "invitee" is when that person is visiting a store or place of business. The customer has been "invited" onto the premises to conduct commercial activity for the benefit of the property owner.
- Licensee: a licensee is someone who has been invited upon the premises or has entered upon the premises and the property owner has consented to their presence on the property. However, the presence of the licensee is not for the benefit or commercial gain of the property owner.
- The obvious most common example of a licensee is a social guest or visitor to a private home. The person is on the premises with the permission of the property owner but the property owner is not being benefited from the presence of the social guest.
- Trespasser: a trespasser is, of course, someone who has entered upon private property without the consent of the property owner.
- Children: under South Carolina law, children are recognized as a separate class of persons with its own set of rules and negligence standards and duties of care owed to them by private property owners. There are several sets of legal standards and rules for children, such as "attractive nuisance" theory, that will be discussed in subsequent articles, but the main idea is to understand that South Carolina Law does afford a higher level of protection for children in the area of premises liability.
MY ANALYSIS - CHILDREN PLUS ONE: INVITEE, LICENSEE, OR TRESPASSER
Though South Carolina law treats children as a separate class under theories of "premises liability," I have often found that in practical application involving cases of children who have been injured as guest in the private homes of non-parental parties, I must also consider the other three classifications.
Why? Because in my experience, it is important in the prosecution of the case to know whether the child was an invitee, a licensee, or a trespasser. So in my mind, when I work a case that involves a child injury, it is not enough to know simply if the injured party is a child. I must know why the child was on the property.
In the scenario I am addressing today, and by looking at the definitions of the classifications listed above, you can conclude that children are also licensees when they are social guest on the private property of a non-parent. Why is this important?
The reason that it is important to know why and how the child got onto the property is because it helps determine how many possible grounds for recovery I may have for the injured child.
For instance, if a child is a trespasser on to the property, the theories of recovery that may be available to compensate for any injuries may be limited to "attractive nuisance" theory or to the strict liability standard of the dog-bite statute if the the trespassing child is injured by an animal. Any negligence by the property owner owed to a trespassing child will be limited by the law as established under those specific theories. It shuts the door on other theories of recovery under negligence theory.
However, if the child is invited onto the property and the child's presence on the property is consented to by the property owner, as an attorney I have other grounds for recovery available to pursue since the child is also a "licensee" on the property that would not be plausible if the child were a trespasser. The theories are compounded to not only impose upon the property owner the duty owed to a child, but also additional legal duties owed to a guest as a social host. South Carolina law strongly supports the notion that whether the relationship is between adult / child and / or host / guest, the law creates a duty to conduct affirmative conduct to aid and protect.
The most common scenario that I have seen in my practice concerning injuries to children that occur in the homes of non-parental parties have involved what can be best described as "negligent supervision." This most often involves an injury suffered by a child that occurred while the child was not being supervised by the property owner, agent of the property owner (babysitter), or other adult on the premises who voluntarily undertook a duty to supervise and protect the child.
The one tricky area of these types of cases will always be the age and experience of the child. The legal duty of care owed to a 2 year old toddler will undoubtedly be a lot higher than that owed to a 14 year old. Would it be negligent for an adult to leave a 2 year old unattended in the backyard of the home with a large dog that weighed over 50 pounds? Same circumstances but now the kid is 14 years old, does that change your thinking? A key element in all child cases involving personal injury is the ability of the child to appreciate the dangers that surround him / her that may cause injury. For a 2 year old unsupervised, this could be something as normal as a flight of stairs or a kitchen appliance, for a 14 year old it could be access to an automobile or a liquor cabinet.
NEGLIGENCE AND INJURIES TO CHILDREN
In the midst of all these legal considerations, remember that even though the duty may be heightened for a child, the general negligence analysis still applies: There must be (1) a legal duty owed to the child; (2) a duty that was breached; (3) the breach of duty was the proximate cause of the injury to the child; and (4) the child suffered an injury and damages. The moving target in all cases involving children is part (1): what duty, if any, is owed to a child of similar age and / or experience.
The basic axiom for premises liability cases involving children in South Carolina is summed up here: “Children, wherever they go, must be expected to act upon childish instincts and impulses; and others, who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly.” Franks v. Southern Cotton Oil Co., 78 S.C. 10, 18, 58 S.E. 960, 962 (1907).
THE MCMILLIAN LAW FIRM - CHARLESTON, SC AND SUMMERVILLE, SC PERSONAL INJURY ATTORNEY
Contact Jay McMillian at The McMillian Law Firm. Once you have obtained legal representation on your matter, the insurance company must cease direct contact and deal with your lawyer instead. Contact me as soon as possible so that I may conduct a site visit of the accident and begin to obtain witness statements, police reports, and all relevant materials I need to build your case towards an acceptable settlement or trial.
It is never too early to contact me! Each and every day is a day the insurance company will try and short-change your claim. I am available for home visits, hospital visits, nights and weekends, just let me know what works for you.
If you have been involved in a car accident and live in Charleston, Mt. Pleasant, North Charleston, Summerville, James Island, Johns Island, West Ashley, Goose Creek, Moncks Corner, Walterboro, Folly Beach, or any of the other fine communities of the South Carolina Low Country, contact The McMillian Law Firm now!! 843-900-1306 or email at [email protected]