Tort Law: Trespasser

A trespasser is one who enters (or stays) on the land of another without any right or privilege to do so. Generally speaking, a landowner owes no duty to a trespasser except to refrain from injuring him by “willful and wanton” misconduct.

Three exceptions:

• Traps – a landowner must warn everyone, including trespassers, of traps set on their land. The warnings must be reasonable, so that all may avoid the threat of injury.
• Children - a possessor of land is liable for physical harm to children trespassing on their land caused by artificial conditions upon the land under the attractive nuisance doctrine, if: (1) the place where the condition exists is one upon which the possessor knows or has reason to know the children are likely to trespass, and (2) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (3) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger is slight as compared with the risk to children involved, and the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Restatement of Torts 2d §339 (1965).
• Habitual Trespassers – when the occupier knows that significant numbers of trespassers habitually frequent a particular and limited part of the land, or when a trespasser’s presence on the land has actually been discovered by the occupier, most courts will hold the owner to a duty of reasonable care in conducting activities on the premises.

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Tags: Law School, Torts

This entry was posted on Friday, October 9th, 2009 at 1:41 pm and is filed under Law School, Torts. You can follow any responses to this entry through the RSS 2.0 feed.