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driveway liability

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  • 07-05-2014 9:00pm
    #1
    Andyjj
    Registered Users Posts: 5 ✭


    Just curious, I live in an estate where houses' front gardens are not separated by fences. It' s just driveway/lawn/driveway/lawn. Like most estates, kids run around playing where they like, gardens, driveways, common areas etc. If a child has an accident in my garden/drive am I potentially liable? Also, if my car gets damaged in my drive by one of the kids, have I any comeback?
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    #2
    Little CuChulainn
    Closed Accounts Posts: 7,624 ✭✭✭Little CuChulainn


    It depends on how the accident happened. If they just slip on wet grass then it's unlikely you would be held liable. If they step on a bear trap then it's likely you will have issues.


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    #3
    Mikros
    Registered Users Posts: 503 ✭✭✭Mikros


    As an occupier you have a duty of care not to to intentionally injure or act in reckless disregard of the children's safety. As you are aware children are running around you would arguably have to take more steps to ensure reasonable precautions than if it was a gated driveway. The key word is what would be considered reasonable. A lot of different factors could weigh in - did you know there was a danger, how practical it is to eliminate or protect people from the danger, how much care should the child expect to take themselves, what level of supervision should they be under,etc.

    As an example if you dug a 5 foot trench in your garden and left it uncovered while you went away for the weekend you arguably could be found liable if a child fell in given that you knew they were likely to be running around. However if a child tripped on a step and injured themselves you would likely not be at fault. Ultimately it would depend on the circumstances of the case.


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    #4
    Wheelnut
    Registered Users Posts: 977 ✭✭✭Wheelnut


    If it is on your property you are liable although an injured party would have to prove negligence. However, there are several legal firms that are willing to make claims on the basis that you probably have insurance and the insurance company might make a settlement rather than run up expenses.


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    #5
    GoodLord
    Closed Accounts Posts: 445 ✭✭GoodLord


    Mikros wrote: »
    As an occupier you have a duty of care not to to intentionally injure or act in reckless disregard of the children's safety. As you are aware children are running around you would arguably have to take more steps to ensure reasonable precautions than if it was a gated driveway. The key word is what would be considered reasonable. A lot of different factors could weigh in - did you know there was a danger, how practical it is to eliminate or protect people from the danger, how much care should the child expect to take themselves, what level of supervision should they be under,etc.

    As an example if you dug a 5 foot trench in your garden and left it uncovered while you went away for the weekend you arguably could be found liable if a child fell in given that you knew they were likely to be running around. However if a child tripped on a step and injured themselves you would likely not be at fault. Ultimately it would depend on the circumstances of the case.

    How much responsibility has the child parents in a scanrio like above. if op dug a 5 foot trench in his/her garden and left it uncovered while he/she went away for the weekend and a child fell would the lack of parental supervision come into it at all?. Do parents have any duty of care in relation to allowingthe children play in others drives as distinct from teaching them boundaries? Could it be argued that if a parent cannot ensure the child stays out of others drives the child should be kept in its own garden?


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    #6
    Mikros
    Registered Users Posts: 503 ✭✭✭Mikros


    GoodLord wrote: »
    How much responsibility has the child parents in a scanrio like above. if op dug a 5 foot trench in his/her garden and left it uncovered while he/she went away for the weekend and a child fell would the lack of parental supervision come into it at all?. Do parents have any duty of care in relation to allowingthe children play in others drives as distinct from teaching them boundaries? Could it be argued that if a parent cannot ensure the child stays out of others drives the child should be kept in its own garden?

    The level of supervision might come into it depending on the age of the children. It is certainly an argument that could be put forth in reapportioning some liability. My own view is the courts would take a dim view on it - children will naturally play and explore and where all the gardens are open like how the OP describes it is not reasonable to expect them to respect intangible boundaries. Especially with a big trench to look at.


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    #7
    No Pants
    Closed Accounts Posts: 3,347 ✭✭✭No Pants


    If the owner of the driveway had asked/told the children to stay out of it, would that have any bearing? Would this change if the request was made in writing to the parents?


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    #8
    GoodLord
    Closed Accounts Posts: 445 ✭✭GoodLord


    No Pants wrote: »
    If the owner of the driveway had asked/told the children to stay out of it, would that have any bearing? Would this change if the request was made in writing to the parents?
    that second part is a good question. asking the kids to stay out I could see issues with as Mikros said " children will naturally play and explore and where all the gardens are open "Could one expect a child to understand 'stay out' as being a permanent thing?
    How would you prove you had told them to stay out? Or told the one who had the accident?


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    #9
    Victor
    Registered Users Posts: 78,366 ✭✭✭✭Victor


    GoodLord wrote: »
    How much responsibility has the child parents in a scanrio like above. if op dug a 5 foot trench in his/her garden and left it uncovered while he/she went away for the weekend and a child fell would the lack of parental supervision come into it at all?. Do parents have any duty of care in relation to allowingthe children play in others drives as distinct from teaching them boundaries? Could it be argued that if a parent cannot ensure the child stays out of others drives the child should be kept in its own garden?

    Neither children nor courts will respect invisible boundaries. I'm fairly sure there is case law on this.


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    #10
    No Pants
    Closed Accounts Posts: 3,347 ✭✭✭No Pants


    GoodLord wrote: »
    How would you prove you had told them to stay out? Or told the one who had the accident?
    If you're going to the bother to write such a letter, keep a copy and proof of delivery.


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    #11
    Mikros
    Registered Users Posts: 503 ✭✭✭Mikros


    No Pants wrote: »
    If you're going to the bother to write such a letter, keep a copy and proof of delivery.

    You'd be better off saving the ink. You still have to same duty of care to a trespasser - namely not to to intentionally injure or act in reckless disregard of their safety. Section 4 of the Occupiers Liability Act 1995 sets out the various factors that should be taken into account when determining what "reckless" entails:

    (a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
    (b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
    (c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
    (d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
    (e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;
    (f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;
    (g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
    (h) the nature of any warning given by the occupier or another person of the danger; and
    (i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.

    But "reckless" still remains a higher burden to prove than ordinary negligence. The term really is in the realm of values, which untimely will be derived from the facts of the case. But the courts tend to have very different expectations for an adult and a child for good reason.


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    #12
    Johnboy1951
    Registered Users Posts: 14,008 ✭✭✭✭Johnboy1951


    Is it not possible to put a small low 'fence' ... even only 18" high ..... around the garden?

    Surely if that were possible then the situation would be changed drastically?


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    #13
    GoodLord
    Closed Accounts Posts: 445 ✭✭GoodLord


    Johnboy1951 wrote: »
    Is it not possible to put a small low 'fence' ... even only 18" high ..... around the garden?

    Surely if that were possible then the situation would be changed drastically?
    that will only be something to jump over. My friend had a four foot fence and children on roadway were using it to balance when they had roller skates. He told them to keep away as he was afraid the skates would go from under them and they would smash their face on the fence. They did keep away


    Later in another garden one skate did go from under someone who needed stitches....


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    #14
    Johnboy1951
    Registered Users Posts: 14,008 ✭✭✭✭Johnboy1951


    GoodLord wrote: »
    that will only be something to jump over. My friend had a four foot fence and children on roadway were using it to balance when they had roller skates. He told them to keep away as he was afraid the skates would go from under them and they would smash their face on the fence. They did keep away


    Later in another garden one skate did go from under someone who needed stitches....

    Yes, but a clear demarcation showing a private area not mean for use by the 'public'.


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    #15
    GoodLord
    Closed Accounts Posts: 445 ✭✭GoodLord


    Johnboy1951 wrote: »
    Yes, but a clear demarcation showing a private area not mean for use by the 'public'.

    children will not take any notice and as Mickros says "the courts tend to have very different expectations for an adult and a child for good reason." Unless you meanthe parents will ensure the children do not cross the 18 inch fence


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    #16
    Johnboy1951
    Registered Users Posts: 14,008 ✭✭✭✭Johnboy1951


    GoodLord wrote: »
    children will not take any notice and as Mickros says "the courts tend to have very different expectations for an adult and a child for good reason." Unless you meanthe parents will ensure the children do not cross the 18 inch fence

    It would certainly be much easier for parents to tell children not to enter the fenced area.
    The OP is concerned about damage to property (car in drive) and some accident to kids entering his property.

    A clear demarcation of the property and if necessary a letter to parents asking them to ensure their kids do not encroach would I thought give him more standing in court should a case arise.


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    #17
    GoodLord
    Closed Accounts Posts: 445 ✭✭GoodLord


    Johnboy1951 wrote: »
    It would certainly be much easier for parents to tell children not to enter the fenced area.
    The OP is concerned about damage to property (car in drive) and some accident to kids entering his property.

    A clear demarcation of the property and if necessary a letter to parents asking them to ensure their kids do not encroach would I thought give him more standing in court should a case arise.
    A clear demarcation of the property may help in court/ liability buit will not stop children unless the parents take responsibility


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    #18
    Mikros
    Registered Users Posts: 503 ✭✭✭Mikros


    Johnboy1951 wrote: »
    A clear demarcation of the property and if necessary a letter to parents asking them to ensure their kids do not encroach would I thought give him more standing in court should a case arise.

    I think that would be an over the top reaction myself. Let alone would you be the only neighbour with a wall, you are also proposing out sending out letters further distancing yourself. Hardly the best way to keep good relations. For any court case to succeed there would have to be a high level of negligence proved ("reckless"). I'm struggling to see how such a situation would arise in your average garden/driveway and I have never heard of a case along those lines. Have we become such a litigious society that this is a real concern?


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    #19
    Andyjj
    Registered Users Posts: 5 ✭Andyjj


    Thanks for the feedback guys. I have neither access to bear traps or the time and inclination to dig a big trench so I'm safe enough on that front I guess. : ) How about the other side of it, if I look out and see a wing mirror hanging off my car in the driveway and a bunch of kids disappearing in different directions, I'm out of pocket for repairs I guess?


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    #20
    Mikros
    Registered Users Posts: 503 ✭✭✭Mikros


    Andyjj wrote: »
    Thanks for the feedback guys. I have neither access to bear traps or the time and inclination to dig a big trench so I'm safe enough on that front I guess. : ) How about the other side of it, if I look out and see a wing mirror hanging off my car in the driveway and a bunch of kids disappearing in different directions, I'm out of pocket for repairs I guess?

    If someone damages your car you can look to them to pay for the cost of repairs. Doesn't matter if it is a kid or not - though obviously it would be the parent/guardian you would be going after in that case. Your main problem would be identifying who done it as they probably will be long gone by the time you notice.


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