The Utah Supreme Court has ruled that residential developers and construction companies should "exercise reasonable care" when they know children could be injured on their property — even if that means additional costs for securing a construction site.
The opinion released Tuesday reversed not only a lower court ruling but the high court's own previous rulings on the question of liability when children are injured at residential construction sites.
Generally a landowner is not legally responsible when a trespasser is injured. But a principle known as the "attractive nuisance doctrine" says that child trespassers deserve special protection from danger.
Until Tuesday's ruling, however, residential construction sites usually fell under an exception to the doctrine.
The opinion, penned by Justice Michael J. Wilkins with the concurrence of Chief Justice Richard C. Howe and Justices Leonard H. Russon, Christine M. Durham and Matthew B. Durrant, rejected 1968 and 1972 Utah Supreme Court rulings, saying they were "made with little analysis and no clear policy statement."
"We are not persuaded that residential construction presents conditions that justify placing it in a special category," the court said.
Irrigation canals should still be exempt, the court said, because fencing around miles of banks would be prohibitively expensive and local governments can impose their own protective requirements.
Attorneys for a construction company and developer in St. George — sued by a woman whose 6-year-old son was injured in 1993 while playing in a partially constructed home across the street from his own — believe the ruling could have serious consequences on Utah's housing market.
"I think some contractors and some insurance companies are going to become very concerned, and they might start putting fences up simply to avoid lawsuits," said Karra J. Porter, who represents Stephen Sheffield. He owned and developed the property in the case. "Our concern is these accidents are relatively rare, particularly when children are so young and parents should be keeping close contact with them. This could potentially drive up housing costs at a time when there is already a shortage of affordable housing in this state."
The defense argued that higher insurance premium costs for contractors would also increase the price of homes.
But the court found that "requiring the landowner to take steps to decrease or prevent the risk of injury to children is not an unnecessary burden."
"Residential construction sites are temporary hazards created by the home builder," the court said. "They are, by definition, in a residential area where children are frequently present."
The opinion said the burden of "minimizing or eliminating" the danger at a site was a temporary one the home builder could control.
Taz Biesinger, executive vice president of the Home Builders Association of Utah, said he intends to notify his members that the "standard of care on a residential construction site" has changed. He agreed that meeting the new standard could become costly.
Attorneys for Patricia Kessler say they are pleased that their case against Sheffield and Randy Mortenson of CRM Construction can now go to trial. A lower court had granted summary judgment to the defense.
"This is one of those egregious cases where it's clear residential contractors should not get out of protecting children," said Kessler's attorney, Fred R. Silvester. "This was a house in an existing residential-class neighborhood. A whole neighborhood of children were playing hide and seek at this house."
The boy, Eric Kessler, apparently fell through a hole in the floor where a staircase was going to be built. He suffered a concussion, according to Silvester, and has had some "cognitive problems" since the accident.
But Porter said even with the new rule a jury will likely not find for the plaintiffs in this particular case, because the child was aware of the hole and his mother had given him permission to play at the building.
Silvester argues that at least "now we're not going to have (lawsuits on behalf of children) thrown out of court simply because the (injury occurred) at a residential construction site."
E-MAIL: mtitze@desnews.com