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What You Owe to a Trespasser

Whitney O’Sullivan

What You Owe to a Trespasser

I grew up in a neighborhood with big yards, trampolines and swimming pools. Each provided hours of carefree summer entertainment for the kids, and plenty of worry for the parents.

The worry not only was that their own children could get hurt, but that someone else’s would, and that they might get hit by a lawsuit if it happened on their property.

Having people in your living or work space comes with inherent responsibilities. There is always the possibility that something will go wrong. But what precisely are these responsibilities? And how, if ever, can you limit your potential liability?

Types of Visitors

While specific distinctions may vary in your state, to understand your responsibility as a property owner, you must first know under what circumstances a person enters your property.

For example, do people often mistakenly walk across a property line and on to your land? Do you have something attractive to children, like a trampoline or swimming pool (an “attractive nuisance”)? Do you like to host friends for social gatherings? Do you conduct business on your land?

Each type of “visit” falls into one of three broad categories:

  • Trespasser: Someone who is on your land without your permission (child or adult, for any reason).
  • Licensee: Someone who is on your land with your permission for social or personal reasons (friends and family).
  • Invitee: Someone who is on your land with your permission or by public invitation for business/economic purposes (customer).

The duties that you owe depend on which type of visitor you’re dealing with.

Duties of the Property Owner

Somewhat surprisingly, you, as the property owner, owe a duty of care to all three people; even trespassers. What differs is the degree of duty you owe.

Somewhat surprisingly, you, as the property owner, owe a duty of care to all three people; even trespassers. What differs is the degree of duty you owe.

With trespassers, you have a duty not to willfully harm them. If you are aware that trespassing is a possibility, you are obligated to warn about known dangers (think posting on a tree warning of hunting traps). If you know that it’s likely that a child will trespass (i.e. neighborhood children are attracted to your trampoline or pool), you have a duty to eliminate the known dangers.

With licensees (friends and family), you have a duty to protect them against known dangers, like installing a cover over the well that’s in the middle of your back yard. With an invitee (customer), you have a duty to not only protect the invitee against known dangers, but also to conduct reasonable inspections, discover dangers, and to similarly repair and protect against these.

This means that you, as a landowner, will need to think about your property, how you use it, and who else does or might.

How Can You Limit Your Liability?

Allowing other people on your land may suddenly seem like more of a risk than you ever expected. Fortunately there are ways though to reduce your risk and protect yourself:

  • First and foremost, know your land. Know what hazards are present, if you have any amenity attractive to a child, and the state of each.
  • Repair known dangers as soon as possible, even if this goes above and beyond the minimum legal requirement to warn others.
  • Limit access to any known danger that cannot be eliminated. For example, enclose a swimming pool with a locked fence, store trampoline ladders in a separate hidden location, and lock shed doors containing heavy machinery.
  • Post signs warning of known dangers that cannot be fully eliminated.
  • Do not purposefully create dangerous conditions.
  • Know your state’s rules on being a social host and providing alcoholic beverages.
  • Last but not least, request that visitors sign a release from liability. While you will want to consult your local rules, this might include a release for use of a trampoline, swimming pool, ice skating pond, or other inherently dangerous activity. You can quickly and easily have your guests do so, using your own custom template and Shake on your mobile device.