I am often asked during presentations what happens if a trespasser gets hurt on an owner’s property. The answer to this question is not always straightforward and can often depend on the unique circumstances of each case. In most states, a property owner/tenant owes a duty of care to trespassers to refrain from willful and wanton injury. This duty of care is not always easy to define, and it's crucial to understand that an owner/tenant cannot knowingly add features to the property that could injure a trespasser. Owners/tenants doing this could breach the duty of care owed to a trespasser.
The first question we need to answer is: Who is a trespasser? Trespass can take two forms: criminal or civil. This article will only focus on the civil form of trespass. To be a trespasser, the owner/tenant would need to show the following:
- Other person occupied or exercised some control over owner/tenant’s property.
- Control or occupation of the owner/tenant’s property occurred because of the other party’s physical act or force against the property.
- The other party did not have the owner/tenant’s permission to be on the property.
With civil trespass, the owner/tenant could sue the trespasser for damages caused while trespassing. At the same time, what happens if the trespasser gets hurt on the property? Could the trespasser sue the owner/tenant?
Let's look at an example to understand the portion above better. Kayla rides an all-terrain vehicle (ATV) in what appears to be an empty field. Kayla’s ATV joyride destroys a part of Daniel’s forage crop. Kayla occupied or exercised control over Daniel’s property. He did not permit her to be on the property. Daniel could sue Kayla for the damage caused to his forage crop by the trespass.
What happens if, while trespassing, Kayla wrecks the ATV and is injured? Can Daniel be held responsible for her injuries? The answer to this question depends on whether Daniel has refrained from willful or wanton injury of Kayla while she is trespassing. This willful and wanton standard is the lowest duty of care and is the duty of care that the majority of states use with trespassers. A willful means that Daniel had actual knowledge or the equivalent of actual knowledge of potential peril that Kayla could face and consciously failed to avert the injury. Wanton means conduct that is extremely dangerous and outrageous and done with a disregard for the rights of others. For example, if Kayla’s wreck were caused by her poor driving or hitting a natural feature on the land, then Daniel would probably not be held liable for Kayla’s injuries.
But if Daniel, growing tired of trespassers on his farmland, set up traps that could be dangerous to a trespasser, and those traps caused Kayla to wreck, then Daniel is probably liable for Kayla’s injuries from the wreck. For example, if Daniel placed a low-hanging wire across the property in a spot that trespassers are known to cross on and did nothing to make the wire visible to trespassers … and if Kayla rides into the wire, which causes the accident, this has been an excellent example of willful and wanton injury based on prior court decisions.
Trespasser injuries on private property can raise complex legal questions, and the outcome often depends on the specific facts of each case. While owners/tenants are generally not expected to ensure the safety of trespassers, they cannot engage in conduct that rises to the level of willful or wanton injury. In other words, an owner/tenant does not owe trespassers the same protections as invited guests or customers, but they also cannot intentionally or recklessly create hazards that are likely to cause serious harm.
Understanding this distinction is critical for both owners/tenants who want to protect themselves from liability and for anyone who might find themselves accused of trespass. Ultimately, the law strikes a balance between an owner/tenant’s right to protect their land and the broader principle that no one should deliberately endanger the life or safety of others, even trespassers.
The article is not a substitute for legal advice. This article is provided for informational purposes only. Readers should consult their own professional advisers for specific advice tailored to their needs. Information contained in this article may be subject to change without notice.
