When is a Property Owner Liable for a Trespasser's Injuries?

Contrary to popular belief, a property owner might be liable for a trespasser's injuries in certain circumstances.

By , J.D. · DePaul University College of Law

Can a trespasser have a valid personal injury case against a property owner based on an unsafe property condition? Believe it or not, the answer can be "yes" in some situations. There are certain aspects of the law that tend to illicit a shake of the head, and this rule may be one of those. The purpose of this article is not to weigh the merits of the law, but to explain the legal landscape regarding premises liability rules when it comes to trespassers, and certain exceptions.

General Rule: Property Owners Are Not Responsible for Trespasser Injuries

As a general principle, property owners are not liable for injuries suffered by trespassers. There are, as we will see, exceptions to this rule. But in any personal injury lawsuit by a trespasser against a property owner, the court will essentially say, "Property owners are not usually liable for injuries to trespassers, so prove why your case is different."

The purpose of the general rule is not to punish trespassers. Rather, the rule recognizes that property owners cannot be expected to anticipate most trespassers. So, the argument follows that property owners cannot be expected to warn trespassers about safety hazards. (Get the basics on liability for personal injury on private property.)

Exceptions for Discovered Trespassers

When people trespass on certain land with some regularity, property owners may begin to expect continued trespassing. In such a situation, the rationale of the general rule is gone. Now, the property owner can anticipate that dangerous conditions could pose safety hazards to people on the property.

So, many states require property owners to warn discovered trespassers of dangerous conditions. For example, if a property owner regularly hunts for deer on her property and discovers that people use the property as a shortcut to a state park, the property owner may need to curtail her activity and/or post signs indicating that trespassing on the land could be dangerous.

Exceptions for Willful and Wanton Conduct

So, if you post signs that warn of danger, can you conduct target practice with automatic weapons and engage in skeet shooting to your heart's content? The answer is usually no. In most states, property owners must refrain from engaging in willful and wanton conduct that causes injuries to trespassers.

For example, imagine a man owns a house where he stores extra belongings. Nobody lives in the house; it is only used for storage. A series of thefts occur at the old house because it's apparent that nobody lives there. To prevent future thefts, the man places a spring gun in the home. The next time the thieves break in, they trip a wire attached to the trigger of a shotgun and are shot.

The homeowner will probably be liable for injuries to the trespasser. Deadly force can almost never be used to protect property.

However, homeowners may usually use deadly force to protect themselves or other people. So, for example, if an armed burglar breaks into a home in the middle of the night, a resident of the home may be entitled to shoot the burglar if the resident feels that his or her life is threatened.

Exceptions for Dogs with "Dangerous Propensities"

If a homeowner knows that her dog exhibits dangerous propensities, the homeowner may be liable for the trespasser's injuries, whether or not she was negligent, subject to certain defenses. Essentially, if you know that your dog is vicious or dangerous, you will usually be liable for any injury that is caused by your dog, whether or not you exercised reasonable care.

"Dangerous propensity" means the dog exhibited characteristics indicating the animal is a threat to cause injury to a human being. A dog's breed can also be considered in determining whether or not a dog had dangerous propensities. For example, knowing that a dog is part pit bull may be relevant in determining whether or not the dog is dangerous.

Exception to the Exception: Taking Precautionary Measures

Even if the dog exhibited dangerous propensities, if the homeowner takes sufficient precautionary measures, the homeowner may not be liable. For example, if the homeowner chains the dog, and the trespasser, knowing of the dog's presence and dangerous propensities, puts him or herself in harm's way, the trespasser cannot recover any damages from the homeowner. This is a limited exception that only applies in rare cases, but when the facts line up the right way, the dog owner can be absolved of liability. Learn more about animal and dog bite injury laws.

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