Children explore. They climb. They wander into places adults would not. Delaware law recognizes that traditional rules limiting trespasser protection do not always work when applied to children — and that property owners often share some responsibility when a child is hurt by a foreseeable hazard.
The Detailed Answer
The analysis of a Delaware child injury claim begins with how the child came to be on the property and what the owner did to protect against the hazard that caused injury.
Children as Invitees and Licensees
When a child is invited onto property — to a friend’s house, a swimming pool, a children’s birthday party — the owner generally owes a duty of reasonable care, often heightened by the child’s age and capacity. Customers’ children at retail stores, restaurants, and entertainment venues are typically business invitees.
The Attractive Nuisance Doctrine
For child trespassers, the attractive nuisance doctrine may apply. This doctrine, drawn from the Restatement (Second) of Torts § 339, may impose liability when:
- The owner knew or should have known children were likely to trespass
- The owner knew or should have known the condition involved an unreasonable risk to children
- The children, because of their youth, did not realize the risk
- The utility to the owner was slight compared to the risk
- The owner failed to exercise reasonable care
Common Child Injury Scenarios
- Falls from playground equipment
- Drowning and near-drowning in unsecured pools
- Trampoline injuries
- Falls from open windows
- Dog bites
- Burns from accessible chemicals or hot equipment
- Injuries on construction sites
- Falls down unguarded stairs
- Lead paint and other environmental hazards
Statute of Limitations Tolling for Minors
Delaware tolls the personal injury statute of limitations for minors under 10 Del. C. § 8116. A minor’s claim generally does not bar until 3 years after the child turns 18 — meaning until age 21. This gives families flexibility, though prompt evidence preservation is still important.
Comparative Negligence and Children
Modified comparative negligence at 10 Del. C. § 8132 applies, but the analysis takes into account the child’s age and capacity. Very young children may not be capable of comparative fault. Older children are evaluated against what is reasonable for someone of their age and experience.
What This Means for Your Case
If your child was injured on someone else’s property, document the scene, get medical care, and consider speaking with an attorney. Delaware law provides several protections for injured children, but evidence still tends to disappear quickly. Settlement of a minor’s claim typically requires court approval to ensure the settlement protects the child’s interests.
Related Questions
Q: Who controls a settlement for a minor?
Delaware law typically requires court approval of any minor’s settlement, with the proceeds often placed in a structured settlement, trust, or restricted account for the child’s benefit.
Q: What if I signed a waiver before the injury?
Waivers signed by parents on behalf of children are not always enforceable, particularly in cases involving negligence. Their validity depends on the specific language and circumstances.
Q: Does my child have to testify?
Sometimes, but the court considers age and the nature of the case. An attorney can advise on how to approach this sensitively.
When to Talk to a Delaware Premises Liability Lawyer
Child injury cases call for careful and sensitive investigation. Joseph M. Jachetti — Delaware Bar #003744 — has experience handling Delaware premises liability claims, including those involving children, and previously spent ten years as an insurance claims adjuster. Read about Joseph, our premises liability practice, and related questions like attractive nuisance.
Free Consultation
Free consultation. No fee unless we recover compensation for you.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
Have a Question About Your Case?
Get a free, confidential consultation with a Delaware attorney.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.