off my lawn, you punk!
April 2, 2007 9:05 AM   Subscribe

Heeliefilter: If my 7-year-old neighbor dashes his brains out on my brick driveway, will I be held responsible in any way?

My neighbor's kid is not allowed to play in the street, and his own driveway is gravel. Thusly, he has taken to circling around on my brick driveway for hours on end with his heelies (for the uninitiated: shoes with a rollerskate wheel embedded in the heel). He does not wear a helmet.

He's a nice kid, and I like the neighbors OK, but I've seen him go down hard a couple times. If he is injured in some way, will I be held liable for this? I've always heard, anecdotally, that injuries on your property, such as a slip-and-fall on ice, would be your responsibility. Could I be sued?

If it makes any difference, I live in New Mexico.
posted by M.C. Lo-Carb! to Law & Government (21 answers total)
I suppose you could always ask the kid's parents to sign a waiver.
posted by Faint of Butt at 9:11 AM on April 2, 2007

You can always be sued. People can file a lawsuit for most any reason they like. The question is whether a judge would allow the suit to go forward and whether your neighbor would win such a suit, and that depends on a number of factors. Would your driveway count legally as an "attractive nuisance?" Have you taken steps to keep the neighbor kid out or alert his parents to supervise him?

IANAL, but if I were you, I'd ask my neighbors to keep their kid off my property.
posted by decathecting at 9:14 AM on April 2, 2007

I don't know about the liability issue at stake here. What I do know is that I hate those POS damn shoes! Because they're not really shoes! People need to stop marketing them as such.

My suggestion would be to go over to talk to his parents about your concerns (no one would be able to promptly get their boy help if you weren't home.. that kind of thing) and "gift" the boy a helmet to wear if he comes over to skate.
posted by hannahq at 9:16 AM on April 2, 2007

Yes, you can be sued. Either tell your neighbors to keep the kid off your driveway or make sure that your homeowners insurance has some serious coverage for such an incident. When I was shopping for my own homeowners insurance a couple of years ago, two million bucks seemed to be the norm for injuries by others on your property.
posted by meerkatty at 9:17 AM on April 2, 2007

If you really want to be jerky about it, you can send them (the parents) a letter and keep a copy of it... or you can e-mail them, I suppose, and voice your concern that way. In the event that an unfortunate series of events lands you and your neighbor on opposing ends of a law suit, such a paper trail will be invaluable. On the other hand, it will seem a little high-handed if your neighbor is not the suing kind.

I suggest that you speak with the neighbor, and then you can maybe send a brief friendly note as a follow-up, once you've opened a dialogue.
posted by Mister_A at 9:29 AM on April 2, 2007

Yes, you can be sued. In the good old days, when a neighborhood kid hurt himself in your driveway, his parents would clean him/patch him up, tell him to be more careful, and that would be the end of it. Nowadays, people sue for anything and everything.

In order to keep the neighborhood friendly, I'd first talk to his parents, and say that you like Johnny, but you're concerned about him playing and getting hurt in your driveway. Say something about how you come and go frequently, and don't want any accidents. Tell them that you thought it more appropriate for them to tell him, not you. Then make it clear that you'll ask him nicely to leave in the future if you see him there.

Then go check your insurance coverage. We have a (fenced, locked) inground pool, and decided to get an umbrella policy on our insurance for just this reason. Sadly, people don't seem to watch their own kids much these days.
posted by Flakypastry at 9:35 AM on April 2, 2007

Thanks for the answers - I was always dubious about lawsuit horror stories, but I guess I was being naive.

I probably should have noted that I'd rather not talk to his parents unless I have to. They're pretty neglectful as it is, and I'd feel bad about taking away this kid's sole alternative to watching television and drinking soda.

I'll make sure my insurance policy has adequate coverage.
posted by M.C. Lo-Carb! at 9:38 AM on April 2, 2007

Seconding the helmet idea. You could meet with the parents and say that you're happy to have the kid play, but he needs to wear a helmet (and maybe knee and elbow pads?) while he's on your property. And maybe have him only play when you're at home. (Not legal advice -- I know absolutely nothing about personal injury law or premises liability law.)

On preview -- Maybe just give the kid a helmet? if the parents are neglectful. I'm glad you're trying to let the kid still play sometimes -- kids really need places to be, places to play, adults that consider their needs.
posted by ClaudiaCenter at 9:43 AM on April 2, 2007 [1 favorite]

If I were you, MC Lo-carb, I'd ask my insurance agent about this too. If you know the kid's doing this and don't take any steps to stop it, and he gets hurt, you may be found negligent, and your policy might not cover you in that case.
posted by ikkyu2 at 9:57 AM on April 2, 2007

It strikes me that if you provide a helmet, that only would increase your exposure to liability if the kid was hurt, since it establishes that he was there with your consent. IANAL.

As uncomfortable as the chat with the neighbor parents may be, it is important that you have it, and follow it up with a written note to ensure there are no future disputes about what was agreed. Be sure to stand firm about asking the kid to leave if you find him on the driveway after that point. If it becomes a problem, a second chat and letter, followed up with clear "No Trespassing" signs would be appropriate.

Don't accuse, don't waver, and don't back down. Asking people to keep their kids/pets/cars/whatever off your property is not un-neighborly, nor unreasonable. It's just good sense. If they're not on your property, then they can't get hurt on your property, and you will sleep far easier because of that knowledge.
posted by BigLankyBastard at 9:58 AM on April 2, 2007

helmet plus waiver makes sense to me.

Heelie's look like so much fun.
posted by ZackTM at 10:04 AM on April 2, 2007

A waiver seems like a nice idea, but a signed waiver will still not prevent or pre-empt a lawsuit. Please, please speak with the parents and follow up with a paper letter or E-mail; and keep a copy of this communication.

[Eerie mental powers]You don't want this kid on your property at all. [/Eerie mental powers]
posted by Mister_A at 10:24 AM on April 2, 2007

Riskwise it'd be smart to have the kid completely off the property, but it's not very neighborly. Talking is. Just work up a scene from "Leave It To Beaver" or "The Andy Griffith Show" and do your part.

It won't hurt, especially seeing as how any random person who happens to be walking by your house could trip and crack their head on your driveway and sue. The only thing you can do is to put some time into good-faith mitigation. You don't need to post "PLAY AT YOUR OWN RISK" every three feet around the permiter of your house.
posted by rhizome at 10:46 AM on April 2, 2007

a signed waiver will still not prevent or pre-empt a lawsuit
My impression from talking to a law student friend is that a verbal waiver from the parents would be legally binding. Have I been misinformed?

A chat with the parents would certainly be a good deal friendlier than a letter or a no-trespassing policy. "I don't mind little Jimmy playing in my driveway, but I'd like to have your assurance that you won't sue. Let's shake on it." At the very least, they'd have a harder time finding a lawyer to take the case...
posted by danblaker at 11:08 AM on April 2, 2007

I'd feel bad about taking away this kid's sole alternative to watching television and drinking soda.
You are kind. Please don't let us talk you out of that. Your question per se I am not qualified to answer, but I'd like to chime in in support of your intention.

I'm glad you're trying to let the kid still play sometimes -- kids really need places to be, places to play, adults that consider their needs.
Seconding Claudia, as always. Yes, yes they do.

"Minimizing liability" might not be the best goal for every human interaction. There are worse things in life than being sued. Here's one: having to say "I'm not a bastard, I just have to protect myself. I can't do the kind or compassionate thing -- I can't treat people as I would want to be treated, because they are not like me and will take advantage." Here's another one: actually believing that.
posted by Methylviolet at 11:13 AM on April 2, 2007 [1 favorite]

"and "gift" the boy a helmet to wear if he comes over to skate."

I think that's a bad idea. The helmet is a good idea, but giving him one is a bad idea. If he falls and the parents sue, you just know that some lawyer is going to pull out the "Well, the OP gave him a helmet, so the innocent child assumed that the OP was saying it was ok to skeet around on his driveway."

It's up to the parents to ensure that the kid has the proper safety equipment.

Sadly I know too many lawyers these days and the thought of making a lot of money is tempting to too many people. Even if they sue and lose, the OP is still going to have to defend themself in court, which gets awfully expensive.

And hannahq is right.. those damn things are marketed as shoes, and what kid thinks that you need a helmet if you're just wearing shoes?
posted by drstein at 12:23 PM on April 2, 2007

As a parent and homeowner, let me first just tell you if the first time you approached me about this you brought with you a legal document that you asked me to sign... well, I would think you are the biggest fucking idiot/asshole/paranoid freak that has ever walked the face of the earth.

That's what you do AFTER I ignore you.

Walk over some Saturday afternoon, be friendly, and simply mention that you are worried that my son might hurt himself while skating in your driveway.

The implication that I am perhaps worried about liability will likely be clear, without you saying to me: "I think that you are the kind of pond scum who would sue me in this situation."

Just my 2 cents.
posted by gregvr at 1:08 PM on April 2, 2007 [1 favorite]

IANAL. But I would just have a short word with his parents. No need to have them sign a waiver, as I doubt that would do anything for your chances of getting sued and would make you look like a jerk. Just tell them you've seen Johnny take a few spills in your driveway and that you can't be responsible for him if he's going to skate there. My five-year old just got a pair of Heelies (thanks grandparents), and while they're scary, there are about a billion other ways for him to get hurt during the day.

I find it dusturbing that your driveway can suddenly be upgraded to a nuisance just because some kid neighbor decides to get some Heelies. Hell, it wasn't a nuisance before he got the shoes, and it can hardly be your responsibility to keep track of every new fad that comes around.

On the other hand I commend you on trying to find a way to let him roll around on your driveway. Seems the right thing to do to me.
posted by ldenneau at 1:20 PM on April 2, 2007

For all of those suggesting some kind of waiver or release ... please realize that these things hold almost no legal water without significant legal input on both sides. That release the skate park makes you sign before your kid can play? Worthless. Any semi-sharp lawyer can cut a release to shreds.

* The signing party didn't know what they were signing.
* The signing party was coerced.
* The signing party was verbally told something different that invalidates the release.
* The signing party is not themselves a lawyer and doesn't understand legal language.
* The release is unreasonably broad.
* The release is unreasonably narrow and doesn't address the specific problem in the complaint.

Release, schmleases.

I've seen him go down hard a couple times. ... Could I be sued?

Yes. Ironically, you are in more danger now than if you hadn't seen anything, as you are now aware of a problem that exists on your property and it can be argued that you did not take reasonable steps to prevent it.

There is essentially no way you can completely, 100-percent protect yourself here, even if you had walled off the property (and even then, in some circumstances, a case could be made). It's precisely these kinds of situations that homeowner's insurance with liability coverage was invented.

The key here is the "reasonable person" standard. Would a reasonable person consider this a dangerous situation? Would a reasonable person have noticed a pattern of activity that was dangerous? Would a reasonable person have taken a reasonable preventative action? Think about it. Until you say something to him or his parents, you ARE tacitly allowing the kid to visit your property and play on it. Unless you say something, a reasonable person might draw the conclusion that you're OK with it.

So, speak to the parents. Speak to the kid. Post a sign. And contact your insurance agent to update your coverages.
posted by frogan at 2:04 PM on April 2, 2007

Thanks so much for all the answers.

I'd really like to believe my neighbors would take responsibility for their own kid were he to be injured. We know them pretty well and they're the kind of neighbors who occasionally come over to borrow something or help us unload a heavy item from the car or sign for a package delivery when we're not home.

Were we to be sued over something like this, I'd be mad about the hassle, but mostly just sad about the implications therein for community and friendship.

I guess I'll go talk to them about it. The heelie skating is a nearly daily after-school activity, and given the number of times I've seen him bite the dust, the odds for injury appear pretty high.

Or I could just sprinkle a bunch of sand and gravel over the bricks...
posted by M.C. Lo-Carb! at 3:14 PM on April 2, 2007

I've decided to interpret that they're dead beat parents and then assume that they're similar to ones I know. Forget them entirely. Approach the boy playing on your drive like he's a wild creature, you don't want to scare him away but watch your fingers he may bite. Crappy parents will do that to a kid.

Watch his expressions and alter plan of attack accordingly. If he's a little tame explain to him that you wouldn't mind him playing but you do worry he will get hurt. But if he wore a helmet that would be ok. (It boggles the mind that you could sue a person because YOU are a shitty parent) He may have one or his skull would appreciate your gesture.

Some incredibly bastardly kids would be as well behaved as they could muster (they tried bless them) ie not letting go of my hand at all when we walked to the shops (if you only knew this one in particular you would be amazed) It's like they're intrigued and want to know more. 'Ah, this must be that somebody gives a shit thing I've heard of. It feels kinda nice, please do go on I should like to learn more of this'. They're starved emotionally so a pleasant simple method is met by the best of their abilities.

I seem to have one foot on my soap box :d It's pretty likely he will wear a helmet for you. Please don't get frustrated or irritated because you find them to be jerks and then punish him. Why do you think he's hiding out in your yard. Beating his self like he thought that scene from Fight Club looked like a good idea? (ha ha yes I know I shouldn't think that's funny, in my defense it was before I hit post).
posted by mu~ha~ha~ha~har at 5:18 PM on April 2, 2007

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