ACADEMIC PHYSICIAN
LIFE CARE PLANNING LLC
California / Texas / Florida

Duties of Owners and Occupiers: Trespassers

Fact Pattern #1:

John trespasses through Robert’s property in order to take a shortcut to the lake. En route, John stumbles over a large pit hidden by brush Robert dug in order to trap animals on his land. John injures his back, causing a spinal cord injury and paralysis.

Question

Does a landowner have a duty to protect trespassers from dangerous conditions on his property?

Fact Pattern #2:

Robert can see people trespass through his property in order to get to the lake—he sees this almost every day when the whether is warm. En route to the lake, John stumbles into a large pit hidden by brush Robert dug in order to trap animals on his land. John injures his back, causing a spinal cord injury and paralysis.

Question

If the landowner knows that his land is frequently used by various trespassers, is he obligated to warm them of dangers that exist on the property?

Fact Pattern #3:

Robert looks out of his bedroom window and sees John trespassing on his property, cutting through to the lake. Robert has recently dug a large pit and covered it with brush—he sees Robert heading right toward it but decides not to make the effort to warn him. John stumbles into the pit, injures his back, causing a spinal cord injury and paralysis.

Question

If the owner has knowledge that a particular person is trespassing, must he exercise reasonable care for the trespasser’s safety?

Rule

The general rule is that the landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any way. The theory behind this is that a property owner should be entitled to use his land as he wishes. However, there are some important exceptions to this general absence of duty of care to trespassers. The most important of these are: constant trespass on limited area, discovered trespassers, and trespassing children.

Fact Pattern #1:

Since John is a trespasser, Robert owes him no duty of care and is not liable for the injuries John suffered as a result of his fall on Robert’s property.

Fact Pattern #2:

When there are consistent trespassers on a limited area of land, in order for liability to attach, John must show that Robert had reason to know that his land is consistently trespassed on. This could be a beaten path or litter on the path. A consistent trespasser on a limited area is afforded a higher standard of care than the ordinary trespasser because the law assumes that, if the land occupier knows about the consistent trespassing and does nothing to stop it, the land occupier has given a kind of implied consent to the trespassing and will be liable for any injuries that result. Therefore, Robert must either make the hidden dangerous condition safe or prevent the consistent trespasser from gaining access to his land.

Fact Pattern #3:

Robert knew that John was trespassing on his land and is required to warn him of the danger. Robert will be liable for John’s injuries.

Discussion

An ordinary trespasser is defined as anyone coming onto the land without the express or implied permission of the land occupier or without a legal privilege to enter the land. There is no duty owed to a trespasser whose presence on the land is unknown to the land occupier. Further, the land occupier is under no duty to discover the presence of the trespasser. This is true with respect to both natural (e.g., a hidden bog) and artificial conditions (e.g., an excavation pit) existing on the land as well as in regard to all activities occurring on the land.

However, if the land occupier knows or should reasonably realize that there is a trespasser on the land, he is under a duty to exercise care to either warn the trespasser of, or make safe, artificial conditions or activities that involve a risk of death or serious bodily harm.

View PDF