Open and Obvious Hazards and Child Trespassers in Utah: When an Owner Owes No Duty and When It Does

General information, not legal advice. Read the full disclaimer.

Short answer: In Utah, an owner or occupier may owe no duty to warn of or protect against a danger that is open and obvious; the Utah Supreme Court adopted the Restatement (Second) of Torts rule in Hale v. Beckstead and in Coburn v. Whitaker declined to reconsider it (the case involved a person who tripped over orange construction netting across a public trail). On the other hand, the attractive nuisance doctrine can make a landowner liable to trespassing children: in Kessler v. Mortenson (Utah 2000) the court adopted Restatement (Second) of Torts § 339, which asks whether the possessor knew children were likely to trespass, whether the condition posed an unreasonable risk of death or serious harm to children, whether the children, because of their youth, could not appreciate the risk, whether the burden of removing the danger was slight, and whether the possessor failed to use reasonable care. Both doctrines are fact-heavy.

Who this guide is for

Utah adults injured by a visible hazard, and parents of children hurt on someone else's property, who want to understand when a duty exists.

The open and obvious danger rule

Under the Restatement approach Utah adopted, a possessor of land is generally not liable to an invitee for harm caused by a danger that is known or obvious to the invitee, unless the possessor should anticipate the harm despite the obviousness. In Coburn v. Whitaker, the district court held that orange construction netting stretched across a public trail was an open and obvious danger, so the construction company owed no duty about it; the Utah Supreme Court affirmed and declined to reconsider Hale. We relied on published summaries of these decisions rather than the full opinions — read them or ask a lawyer before relying on the details.

Practical effects:

• A defendant will argue that any reasonable adult would have seen and avoided the hazard (a visible curb, a clearly marked step, a visible wire).
• You can respond that the danger wasn't actually obvious (poor lighting, camouflage, distraction that the owner should have anticipated), or that the possessor should have anticipated harm despite it.
• Even where the rule doesn't bar a claim, comparative fault reduces recovery. See Utah's Comparative Fault Rule.

Attractive nuisance and child trespassers

In Kessler v. Mortenson, a six-year-old fell through an unprotected stair opening in a partially built house while playing hide-and-go-seek. The Utah Supreme Court overruled earlier decisions that had treated residential construction sites as categorically outside the attractive nuisance doctrine, adopted Restatement (Second) of Torts § 339, and said it is decided case by case. The § 339 elements are:

1. the possessor knows or has reason to know that children are likely to trespass where the condition exists;
2. the possessor knows or has reason to know of a condition that poses an unreasonable risk of death or serious bodily harm to children;
3. the children, because of their youth, don't discover the condition or realize the risk;
4. the utility of the condition and the burden of eliminating the danger are slight compared with the risk to children; and
5. the possessor fails to use reasonable care to eliminate the danger or protect the children.

The court said a house under construction isn't automatically an attractive nuisance and kept in place an irrigation-canal exception; it also declined to abolish the invitee, licensee and trespasser classifications.

Examples to think about

• Pools, trampolines, construction sites, abandoned buildings, open pits, unlocked equipment. Whether a particular hazard qualifies depends on all five elements. See Utah Swimming Pool Accidents and Drownings and Utah Construction Site Injury Claims.
• Older children and teens are more likely to appreciate risks, which weakens the third element.
• Recreational land may fall under a separate statute that limits owner duties. See Utah's Limited Liability for Recreational Land.
• Government property has immunity and notice rules. See Utah Governmental Immunity Act Claims.

Children's claims and deadlines

Utah's tolling statute says the statute of limitations doesn't run while a person is under 18 (§ 78B-2-108), but government notice deadlines and parents' own claims for medical expenses need separate attention. See Utah Injury Claims for Children.

What to do

1. Photograph the hazard exactly as it was (visibility, lighting, signs, fencing, gates, locks).
2. Document how children reached it and any prior trespass the owner knew about.
3. Keep medical records.
4. Report to the owner and insurer and ask that the area be preserved.
5. Talk to a lawyer before making statements.

Frequently asked questions

Does an obvious hazard always defeat a claim in Utah?

No, but the open and obvious rule can mean the owner owed no duty about it; the facts decide.

What is an attractive nuisance?

A dangerous condition on land that attracts children who don't appreciate the risk; Utah applies Restatement § 339.

Is a house under construction an attractive nuisance?

Not automatically; it is decided case by case under Kessler.

Can a trespassing adult recover?

Generally owners owe trespassers no duty to make the property safe, with limited exceptions.