• Key point. Churches may be legally responsible for injuries suffered by trespassing children because of a dangerous condition on church property. Churches also may be liable for injuries sustained by adults while attempting to rescue such children from harm.

A New Jersey court ruled that a church may be liable for injuries sustained by a neighborhood child while playing on church premises. A church was located on a large lot without a fence. The lot contained a low point where rain water accumulated. One day it rained quite heavily and a deep pond-like puddle formed in the low area. A 3-year-old child who lived across the street often played on the church’s property. She looked out the window of her home and noticed her tricycle on the church’s property and wanted to bring it out of the rain. Her mother (the “victim”) instructed the little girl to stay in the house and told her that she would retrieve the tricycle. The mother crossed the street to get the tricycle and noticed the large pond-like puddle that had accumulated on the church’s property as a result of the rain. The tricycle was on the other side of puddle and the mother began walking around the puddle to retrieve it. Suddenly, she heard her little girl behind her saying that she would get the tricycle. The mother instantly realized that her daughter had walked into the large puddle and was in the middle of it. The mother was fearful that due to the young age of the child and given the depth of the water that the child was in danger. She immediately walked towards the child, but before she could reach her, she slipped in the mud under the water, fracturing her leg. The mother sued the church.

A state appeals court concluded that the church could be sued for the mother’s injuries. It quoted the general rule from section 339 of the Restatement (Second) of Torts, a respected legal treatise that is recognized in most states:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

The court concluded that each of these conditions was met. First, the pastor knew that children played on the church’s property. Second, the pastor was aware of the accumulation of water on the property after a heavy rain, and the risk this posed to small children. Third, the pastor should have realized that the flooding condition on the property created an unreasonable risk of serious harm to young children. Fourth, the burden of eliminating the danger was slight compared with the risk to children. The pastor testified that the cost of installing a fence to keep children from walking in the area was approximately $2,000. The court pointed out that the church in fact did install a fence following the incident. Fifth, the church failed to exercise reasonable care to eliminate the danger or otherwise to protect the children. At the time of the incident, “the church had taken no steps to remove the condition or to warn children of the danger.”

The court noted that the Restatement addresses liability of property owners associated with injuries to children caused by artificial conditions on their property. Was this condition satisfied? Yes, concluded the court:

[T]he ponding-effect was an artificial condition. The church buildings and the parking lot had been constructed on the property. The engineer testified that rain water from portions of the roof and from the stone driveway area contributed to the accumulation of water in the low area. The church building, with the resulting flow of rain water from the roof and the stoned parking lot were not natural conditions of the land, but instead were artificial conditions contributing to the accumulation of rain water on the property.

The court concluded that if a church owes a duty of care to a trespassing child under the Restatement analysis summarized above, it also owes a duty of care to an adult rescuer. As a result, the church could be responsible for the mother’s injuries incurred while attempting to save her child from the dangerous condition on the property.

Application. It is common for neighborhood children to play on church property. Perhaps this is true of your church. If so, this case should be considered carefully, since it presents an excellent review of the basis for church liability to trespassing children who are injured while playing on church property. It also illustrates that parents and other adults who are injured while “rescuing” a child from a dangerous condition on church premises may also be able to sue the church for injuries received. In summary, if trespassing children play on your property, and there is a potentially dangerous “artificial” condition, then you should consider the feasibility of eliminating the condition or making it less accessible to young children. Warning signs are often of limited value, since they cannot be read or comprehended by younger children. Blackburn v. Broad Street Church, 702 A.2d 1331 (N.J. Super. 1998). [Premises Liability]

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