Premises Liability for Trespassers?

If someone gets injured while trespassing on private property, is the trespasser permitted to sue the property owner for personal injury damages? The answer is yes, but under a far stricter standard.

Most types of personal injury claims are based on the negligence standard, but trespassing law is an exception. In most states, a property owner does not owe trespassers a duty not to be negligent, but only a duty not to be reckless in the property owner’s operation of the property. However, in other states, property owners owe trespassers no duty at all. Trespassers in those states who are injured while trespassing on someone else’s property have no legal recourse against the property owner at all.

Let's take a closer look at different premises liability rules when it comes to trespassers.

What is Trespassing?

You might think that that is an easy one; trespassing is being on someone else’s property without permission. But the concept of trespassing is more complex than that. Technically, the basic definition of a trespasser is a person who enters or remains upon someone else’s land without permission to do so.

But what if the trespasser is mistaken about having trespassed? In some states, mistaken trespassing is not trespassing. There are two ways to be mistaken about trespassing. First, the alleged trespasser could be mistaken about where he/she was. If the alleged trespasser reasonably thought that he/she was on X’s property, not Y’s property, that may be an excuse for trespassing on Y’s property in some states.

Alternatively, if the trespasser reasonably believed that the property owner did not object to people going on that property, that also may be an excuse for trespassing. Here is an example of how an alleged trespasser could reasonably believe that the property owner allowed people to enter on his/her property without permission. Let’s say that people have been dirt biking on a rural property for years, and that the property owner lives on that property, but never chased the dirt bikers away. In that case, dirt bikers might reasonably believe that the property owner allowed people to dirt bike on the property, and thus the dirt bikers may not be considered trespassers.

Negligence vs. Recklessness

Negligence is the failure to exercise reasonable care. Put another way, negligence is the failure to exercise that degree of care that a reasonable person would exercise under the circumstances. In the context of premises liability, negligence might be the failure to put a non-skid pad underneath a throw rug or the failure to remove all of the ice from a walkway after an ice storm. (Learn more about proving negligence.)

A reckless action is more “unreasonable” than a negligent action. The courts around the country have defined recklessness differently, but, in general, a reckless action is one where a person knew or should have known that his/her action was likely to create an unreasonable risk of physical harm to another person, but he/she went ahead and did that action anyway. The words "wanton or willful" are sometimes used in place of "reckless." In a premises liability case, reckless conduct would be something pretty outrageous, like putting a rug over a hole in the floor.

Exceptions to the Recklessness Standard in Trespassing Cases

There are always exceptions in the law, and trespassing law is no different. In some trespassing cases, the property owner will be held to the usual negligence standard. One exception is the attractive nuisance rule with respect to child trespassers.

The attractive nuisance rule applies to structures, buildings, land, or other objects on a landowner’s property that children are known to be drawn to or enticed by, when the owner knows that children are drawn to the property but has not adequately fenced off or otherwise secured these attractions. Examples of attractive nuisances could be an abandoned building, a sand pile, or possibly even a swimming pool. Property owners with attractive nuisances on their property are generally liable under the negligence standard to children injured in those areas.

Trespassing Cases at Trial

What we discussed above was the law. But appealing to real jurors at real trials is, for better or for worse, a different story.

Many, if not most, jurors at trial will be property owners, and property owners do not take kindly to trespassers. A trespasser should not expect to win a premises liability case against a property owner. That is just human nature. The fact is that most jurors will not look favorably on a trespasser suing a property owner, with the one exception of the parents of child trespassers suing under the attractive nuisance theory.

That being said, trespassers do have legal rights. If you were injured on someone else’s property and think that you might be accused of having been a trespasser, you may want to contact a qualified premises liability lawyer.

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