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

Contrary to popular belief, a trespasser injured on private property may be able to sue the property owner. Here's how it works.

Can a trespasser sue a property owner if the trespasser becomes injured while on the property? 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 come to a conclusion as to the merits of the law, but to explain the legal rules -- including some of their nuances -- regarding liability to trespassers, the exceptions for discovered trespassers, and the exceptions for willful and wanton conduct.

General Rule: Are Property Owners Responsible for Trespassers’ Injuries?

The answer is no. As a general principle, property owners are not liable for the injuries of trespassers. There are, as we will see, exceptions to this rule. But in any lawsuit by a trespasser against a property owner, the court will essentially say, “Mr. Trespasser, property owners are not usually liable for injuries to trespassers, 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.

Exceptions for Discovered Trespassers

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

Thus, many states require property owners to warn discovered trespassers of dangerous conditions. For example, if a property owner shoots guns on the property and discovers that people use the property as a shortcut to a state park, the property owner may need to 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 is apparent that nobody lives there. To prevent the 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 gun and are shot.

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

Another example of this type of conduct would be if a property owner were to build a deep trench and cover it with brush so that any trespasser would fall into the trench. The property owner would probably be liable for the trespasser’s injuries because a property owner may not usually take affirmative steps to harm trespassers.

However, property owners 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.

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