Trespassers

People who enter upon another’s land are generally classified into three categories.  They are trespassers, licensees, and invitees[i].  A trespasser is a person who enters or remains upon the premises of another without any right, lawful authority, or an express or implied invitation or license.  A trespasser enters into a premise solely for his/her pleasure, advantage, or purpose.  In the case of a trespasser, the occupier of land owes a duty to refrain from willfully, wantonly, or recklessly causing injury[ii].

A landowner is not liable for injury to a trespasser caused by the landowner’s failure to exercise reasonable care to put his/her land in a safe condition for the trespasser, or to carry on his/her activities in a manner which does not endanger the trespasser[iii].  However, a landowner owes a duty of ordinary care when s/he knows that trespassers constantly intrude upon a limited area of the property where the owner either carries on a dangerous activity or has created an artificial condition that s/he has reason to know is dangerous and that the danger will not be discovered by the intruders[iv].

A person who enters upon the premises of another as a trespasser does so at his/her peril[v].  Usually, a discovered trespasser is owed a higher duty when s/he is perceived to be in a situation of peril or possible danger, even if the landowner is aware that s/he is a trespasser[vi].  The discovered trespasser rule provides that an occupier must exercise reasonable care for a trespasser’s safety once his/her presence is known[vii].

However, it is not essential that a trespasser’s presence actually be perceived by the landowner.  It is enough that the landowner has received information which can lead a reasonable person to conclude that a trespasser is present[viii].  However, a person cannot be a trespasser while s/he is in a place to which s/he personally or the public generally is invited, expressly or by implication[ix].  Generally, it is immaterial that an entry of a trespasser was intentional, negligent, or purely accidental.

A person is determined a trespasser by inquiring into whether the means provided as an approach to a building, which is unobstructed and without a warning sign, constitute an implied invitation or inducement to members of the public who which honestly believe that they had occasion to use it.  If so, a party is not a trespasser in entering upon the passageway as an approach to the building[x].

It was observed in Frazee v. St. Louis-San Francisco Ry. Co., 219 Kan. 661 (Kan. 1976) that the duty owed to a trespasser does not include a duty to take security measures to prevent trespassing.  It was further observed that a railroad company does not have a duty to fence its property to prevent trespassing children from boarding its moving trains.

Similarly, in Southern R. Co. v. Chatman, 124 Ga. 1026 (Ga. 1906), it was observed that generally a railway company does not owe any duty to a trespasser upon its track or premises.  However, a railroad company owes a duty not to hurt a trespasser walking willfully or negligently after his/her presence is known to its servants in charge of one of its trains.  Therefore, when a railroad company is charged with knowledge of the presence of a trespasser on its track, it immediately owes the trespasser the duty of exercising ordinary care and diligence to prevent any injury to him/her[xi].

Likewise, in Estate of Zimmerman v. SEPTA, 168 F.3d 680 (3d Cir. Pa. 1999), it was observed that, electricity suppliers owe a duty to avoid wanton or willful injury to trespassers.  This rule comports with the notion that trespassers be given modest protection against tortfeasors.

In some jurisdictions, infants do not have any greater right to trespass upon other people’s land than adults.  The same rule used to for an adult trespasser is applied to an infant trespasser[xii].

In some cases, a worker on a premises loses invitee status when the worker exceeds the scope of the work.  If the invitee goes outside of the area of his/her invitation, s/he becomes a trespasser or a licensee, depending upon whether s/he goes there without the consent of the possessor, or with such consent[xiii].

[i] Miller v. General Motors Corp., 207 Ill. App. 3d 148 (Ill. App. Ct. 4th Dist. 1990).

[ii] Hensley v. Salomone, 2005 Ohio 187 (Ohio Ct. App., Cuyahoga County Jan. 20, 2005).

[iii] Miller v. General Motors Corp., 207 Ill. App. 3d 148 (Ill. App. Ct. 4th Dist. 1990).

[iv] Hensley v. Salomone, 2005 Ohio 187 (Ohio Ct. App., Cuyahoga County Jan. 20, 2005).

[v] Winter v. Mackner, 68 Wn.2d 943 (Wash. 1966).

[vi] Miller v. General Motors Corp., 207 Ill. App. 3d 148 (Ill. App. Ct. 4th Dist. 1990).

[vii] Heins v. Webster County, 250 Neb. 750 (Neb. 1996).

[viii] Miller v. General Motors Corp., 207 Ill. App. 3d 148 (Ill. App. Ct. 4th Dist. 1990).

[ix] Reddington v. Beefeaters Tables, Inc., 72 Wis. 2d 119 (Wis. 1976).

[x] Kallum v. Wheeler, 129 Tex. 74 (Tex. 1937).

[xi] Southern R. Co. v. Chatman, 124 Ga. 1026 (Ga. 1906).

[xii] Frazee v. St. Louis-San Francisco Ry. Co., 219 Kan. 661 (Kan. 1976).

[xiii] Sims v. Giles, 343 S.C. 708 (S.C. Ct. App. 2001).


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