Can You Sue for Dangers Posed By a Negligent Property Owner?

“It just is not right,” one resident emailed the Times.

“For eight months, there’s been this blight in the neighborhood, an empty basement that poses a hazard to children or toddlers who might accidentally wander onto the property. Almost a year now!”

The resident is referring to an empty lot at 201 Washington Ave. in the south part of town. A small home that once stood on the property was moved last November.

The home and well-kept property were featured by the Dorchester Times in 2023. Since the house was moved, however, little appears to have been done to the property other than occasional mowing.

The resident added: “It stinks because (the owners) obviously had the financial means to move the home, but now they have left a huge hole in the ground and other hazards in a neighborhood with several children and visiting grandchildren, even pets. Surely someone can do something.”

What Legal Options May Be Available?

The Times asked a local attorney whether a neighboring property owner — or the village government — might have legal recourse in a situation such as this, particularly if an open basement poses a danger to children.

“A property owner could potentially face civil liability if a dangerous condition on the property causes an injury to a child,” the attorney wrote. “The legal analysis could include a doctrine commonly known as the attractive nuisance doctrine.”

Under ordinary premises-liability law, the attorney explained, a property owner’s responsibility to someone who enters the property without permission may be limited. Nebraska law, however, recognizes a potential exception for children who may lack the maturity or experience to understand a dangerous condition.

Factors That Could Support Legal Action

“To hold a Nebraska property owner liable under the attractive nuisance doctrine, a civil lawsuit generally must establish all five elements recognized under Nebraska law,” the attorney said.

Those elements include:

• Owner knowledge: The owner knows or has reason to know that children are likely to trespass where the dangerous condition exists.
  
  
• Unreasonable risk: The owner knows or should know that the condition presents an unreasonable risk of death or serious bodily harm to children.
  
  
• Child’s inability to recognize the danger: Because of their youth, the children do not discover the condition or understand the risk involved.
  
  
• Burden of correcting the danger: The usefulness of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children.
  
  
• Failure to exercise reasonable care: The owner fails to take reasonable steps to eliminate the danger or otherwise protect children from it.

Whether those requirements are met depends on the specific circumstances. 

Meanwhile, conditions that could raise attractive nuisance concerns include open basements, deep construction pits, abandoned structures with unsafe floors, unfenced swimming pools, discarded appliances, scrap-metal piles and unsecured vehicles, the attorney said.

Nebraska law also gives villages and cities of the second class authority to define, regulate, prevent and remove nuisances. 

"Whether the Washington Avenue property violates a local ordinance or warrants village action depends on the applicable village code," the attorney concluded.