Torts Quick Tip: Premises Liability to Trespassers

Virtually every law student knows the general elements of a negligence claim: an actor must owe a victim a duty to conform to a particular standard of care, breach that duty, and so doing, actually and proximately cause the victim harm.

Many special rules apply in articulating the existence and scope of a land possessor’s duty to occupants on the premises—“premises liability,” for ease of reference. Premises liability is a favorite topic among both torts professors and bar examiners, so it’s vital to familiarize yourself with premises liability. 

Torts professors and bar examiners tend to focus on the traditional, common-law rules of premises liability, so we’ll do likewise in this article. Under the traditional rules, a possessor’s duty turns on the particular classification of the occupant. The traditional rules, in turn, divide occupants into these categories:

This post focuses on the rules governing trespassers. A separate post deals with invitees and licensees.

Broadly speaking, a trespasser is someone on the premises without either (1) the possessor’s express or implied permission or (2) some overriding legal privilege to be there. Beyond this general observation, a possessor’s duty to trespassers depends on whether the trespasser is classified as:

A trespasser is an undiscovered trespasser if the possessor neither knows nor has reason to know of the trespasser’s presence on the land.

The possessor’s duty to undiscovered trespassers is exceedingly limited. Namely, the possessor need only avoid intentionally or recklessly injuring the trespasser. A possessor might intentionally injure an undiscovered trespasser by, for instance, setting manmade death traps, such as spring-loaded guns. Reckless injury might involve recklessly failing to remedy a known, dangerous condition, such as downed or exposed power lines.

The possessor may know or have reason to know that trespassers regularly intrude upon a specific part of the property. If so, then any trespasser falling within this classification is an anticipated trespasser. For example, that knowledge might arise from a well-worn path that is explainable only by recurrent trespassing.

A possessor owes anticipated trespassers a duty only if: (1) the possessor conducts an activity or creates a condition carrying substantial risk of death or serious bodily injury and (2) the possessor knows or has reason to know that anticipated trespassers will not appreciate the danger associated with the activity or condition. In this event, the possessor must use reasonable care to avoid injuring anticipated trespassers, as by conducting the activity with reasonable care or perhaps warning anticipated trespassers of the danger, as by posting conspicuous signage.

In perhaps the classic example, the possessor operates trains on its railroad track. There are well-worn footpaths indicating that people frequently trespass on railroad property adjacent to the tracks for walking. Here, the possessor must operate the train with reasonable care to avoid harming these trespassers.

A trespasser is a known trespasser if the possessor knows or has reason to know that the trespasser is present on the premises. The possessor’s duty to known trespassers regarding activities on the premises is to carry on all activities with reasonable care to avoid injuring the known trespassers.

As for dangerous natural or artificial conditions, a duty arises, at all, only if the possessor knows that (1) the trespasser is approaching (or is in dangerous proximity to) an artificial condition on the premises presenting a risk of serious injury or death and (2) the trespasser will not appreciate the risk. In this limited case, the possessor must warn the trespasser about the condition and the risk it poses, or else take reasonable steps to make the condition safe.

For instance, an engineer operating a train for a railroad company may see a trespasser on the tracks. Here, the engineer must take reasonable steps to avoid hitting the trespasser, such as by applying the brakes and sounding the whistle to warn the trespasser to vacate the tracks.

A unique legal regime applies to child trespassers under the so-called attractive-nuisance doctrine. Under this doctrine, a possessor may be liable for injuries to child trespassers, provided several requirements are met.

First, the injury must owe to an artificial (that is, man-made) condition on the premises. 

Second, the possessor must know or have reason to know that:

Third, the injured child must have been unable to appreciate the danger associated with the condition due to the child’s youth. A corollary of this element is that the older the victim (and, therefore, the better able the victim is to appreciate the danger), the less likely the attractive-nuisance doctrine is to apply at all. Indeed, the doctrine’s application becomes dubious, at best, if the child is over 10 years old.

Fourth, the condition’s usefulness to the possessor, together with the burden of eliminating the condition, must be slight compared to the danger that the condition poses to child trespassers.

Fifth, the possessor must have failed to use reasonable care to protect the child trespasser.

In the famous case of Bennett v. Stanley, a homeowner’s residence had a backyard pool that filled with rainwater and became home to wildlife, like a pond. The homeowner knew that very young children often played unsupervised near the pool, around which there was no barrier. A child was injured playing in the pool.

Here, the homeowner was liable under the child-trespasser doctrine. The pool was a dangerous artificial condition of which the homeowner knew. The homeowner knew the children were young and unsupervised. Being very young, they could not appreciate the pool’s dangers. It was not overly burdensome for the homeowner to put a fence around the pool, drain the pool, or take similar protective measures.

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