In property law trespassing is defined as being physically present on the property of another without an invitation from, or the consent of, the owner of that property or the owner’s agent. Property law generally recognizes three types of trespass:

  • Simple trespass

Simple trespass is defined as being on the property without the owner’s consent. In such cases, the trespasser may not have known that he or she was on another’s property or may have visited the property for a valid reason yet was told to leave by the owner.

  • Criminal trespass

If someone is on the property of another without a valid reason, on that property after being told to leave, or in defiance of a posted notice of warning, a criminal trespass may have occurred. These trespasses are usually considered to be criminal acts and can result in the arrest of the trespasser.

A special type of criminal trespass occurs when a trespasser makes a threat of bodily harm to the property owner and then either 1) immediately carries out an illegal act or 2) returns later to perform such an act. In most states, this is called aggravated trespass and is considered to be a serious misdemeanor or even a felony.

  • Trespass associated with a child and an attractive nuisance

If a trespasser is a child the usual laws regarding trespass, both criminal and civil, no longer apply. In fact, a special application of civil law can expose a property owner to liability if a child is injured while on their property. In legal terminology, this special application is called the “attractive nuisance” doctrine.

Civil law holds that a child is incapable of comprehending the consequences of his or her actions. A child may therefore trespass on a property without understanding that it is wrong to do so. If, however, a child’s natural curiosity is piqued by some object on a property and that object poses a danger that a child may not comprehend, that object becomes an attractive nuisance.

In its simplest interpretation, the liability of a property owner for injuries caused by an attractive nuisance doctrine is as follows:

1. An artificial (man-made and not natural) object exists on a property and this object (swimming pool, discarded appliance, junked car, etc) could cause an injury to a child trespasser.

2. A property owner could have or should have foreseen that this object could pose a danger to an unsupervised child.

3. A child sees this object (“attractive”) and, unaware of the potential danger it presents (“nuisance”), trespasses in order to explore it.

4. The child is injured by the object.

5. Since the property owner should have foreseen the potential danger posed by the object and did not take action to either remove the object or to physically restrict access (fences, locks, etc), the property owner is liable for any injury suffered by the child.

In most jurisdictions, a property owner will be held strictly liable for any injuries to a child due to an attractive nuisance. This means that the mere fact an injury occurred is sufficient to establish the property owner’s liability for damages. In such cases, the damages awarded have been known to reach into the millions of dollars.

Responsibilities of property owners

Generally, a property owner does not owe a duty to a trespasser. With that said, property owners do have a duty to maintain their property in a “state of repair” that will reduce the possibility that a visitor, or even a trespasser, could suffer an injury while on that property. A property owner may, however, take any reasonable action to prevent trespassing and/or protect a property from damage by trespassers so long as that action is not intended to deliberately cause a bodily harm or some other injury.

When in doubt, ask an attorney!

Property law, and what legally constitutes trespass, is a topic that is often unfamiliar to the typical property owner. For this reason alone, if a question arises concerning trespass, it is always best to consult with an attorney who is familiar with the local and state laws regarding the rights of property owners.

End Of Article


Order Title: homeowner liability for trespasser injuries
Order-ID: 16338739
Article Title: Homeowner Liability For Trespasser Injuries
Article Text:

Homeowners must be sure to keep the proper amount of insurance to avoid out-of-pocket expenses if an unexpected event arises. Insurance policies cover damage to your home but also covers injuries when someone is hurt on your property. While it may be difficult to believe, you may be held liable when an uninvited guest is injured on or near your home. Below is an overview of personal injury law and how it pertains to homeowner liability for trespasser injuries. If you are facing a lawsuit in a similar situation, it may be a good idea to speak with a lawyer for advice.

What Is A Trespasser?

A trespasser is a person that you have not given permission to be on your property. In many cases, landowners have frequent trespassers such as hunters who routinely enter the property without the knowledge of the landowner. While the law does not require you to protect these people, you can not take steps to injure them.

When Is A Landowner Liable For Trespasser Injuries?

Homeowner liability for trespasser injuries largely depends on the circumstances surrounding the case. If you know there are frequent trespassers entering your property, you may be held liable for unsafe conditions if:

  • You Created A Dangerous Condition
  • You Do Not Take Steps To Remedy A Dangerous Situation
  • You Did Not Think Trespassers Would Discover The Unsafe Conditions Or Be Injured By It
  • You Failed To Post A Warning Of The Risk For Trespassers To See

If The Trespasser Is A Child

Homeowner liability changes a bit if the trespasser is a child or minor under the law. In many areas, children wander onto property and are unable to determine if an unsafe condition exists. There are things that can lure children onto property, such as swimming pools or trampolines. These are known as attractive nuisances and you must take steps to provide safety measures to keep children from injuring themselves. Property owners could be held liable if a child is hurt or killed if:

  • Children Were Likely Or Known To Trespass On Your Property
  • A Dangerous Condition Existed
  • The Child May Not Be Old Enough To Understand The Potential Risk

When it comes to children, homeowners must take steps above posting danger signs around the home. If you have a swimming pool, you are required to take appropriate steps to prohibit access from wandering children. This means placing a fence around your pool may not be enough, but placing a fence with gait locks that children cannot reach may reduce your liability.

Wanton Conduct

In most states, homeowners must avoid activities that place trespassers in danger on their property. This means target practice or skeet shooting may mean you are liable if someone is accidentally shot on your property, even if they are not invited. Homeowners cannot use deadly force simply to protect property in most states. However, stand your ground laws may protect homeowners who use deadly force to protect themselves and their loved ones if a trespasser is armed and they are in fear for their life. Placing hazards intended to trap or injure someone who is attempting to break into your home will require you to be liable for their injuries or wrongful death in most situations. This area of the law is complex and can be difficult to interpret, so it is best to speak with a personal injury attorney for advice.

When it comes to homeowner liability and trespassers, it can be difficult to determine who is at fault when an injury occurs. While it seems impossible that you could be held liable for injuries sustained by an uninvited guest, it can be the case if certain circumstances exist in the case. If you are a homeowner facing liability for trespasser injuries, it is a good idea to speak with an experience attorney to discuss all of your options available under the law in your state.