Trespasser Responsibility Act

Summary

The Trespasser Responsibility Act provides that land possessors owe no duty of care to trespassers and are not liable for harms to trespassers except in limited situations that are recognized in the common law of most states.

The model act reflects the common law’s status-based approach to land possessor duties with respect to invitees, licensees, and trespassers.  The act is a response to recent “reformist” efforts to replace the historical status-based approach with a unitary standard imposing on land possessors a duty to exercise reasonable care to all entrants, including trespassers in situations in which liability traditionally has not been imposed.  The act would prevent trespassers from being elevated to the same legal status as non-trespassers in situations where tort law previously treated trespassers differently out of respect for the rights of property owners and sound public policy.  The proposal would protect land possessors from costly litigation and unpredictable liability.  The proposal would particularly benefit those who own or rent residential property.  The model act also would reinforce the notion of trespasser personal responsibility and promote the traditional right of land possessors to have exclusive control over their land.

ALEC members interested in this model bill should contact ALEC staff for assistance in ensuring that the legislation acknowledges statutes in the state that govern land possessor liability and to make sure that the model Act’s exceptions to the general “no duty to trespassers” rule reflect those that already exist in the state.

 Model Legislation

 Section 1.  {Title}

 This chapter shall be known and may be cited as the “Trespasser Responsibility Act”.

Section 2.  {Trespasser Responsibility Act}

 (A) General Rule- A possessor of land, including an owner, lessee, or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.

(B) Exceptions.—Notwithstanding (a), a possessor of land may be subject to liability for physical injury or death to a trespasser in the following situation[s]-

(1) Intentional Harms—A possessor may be subject to liability if the trespasser’s physical injury or death was intentionally caused by the possessor, except that a possessor may use reasonable force to repel a trespasser who has entered the land or a building with the intent to commit a crime.

(2) Harms to Trespassing Children Caused by Highly Dangerous Artificial Conditions (“Attractive nuisances”).-A possessor may be subject to liability for physical injury or death to a child trespasser [age sixteen or younger] resulting from an artificial condition on the land if-

(a) the possessor knew or had reason to know that children were likely to trespass at the location of the condition;

(b) the condition is one the possessor knew or reasonably should known involved an unreasonable risk or death or serious bodily harm to such children;

(c) the injured child did not discover the condition or realize the risk involved in the condition or coming within the area made dangerous by it;

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and

(e) the possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.

[(3) Harms to Constant Trespassers on a Limited Area Caused by Highly Dangerous Activities or Highly Dangerous Artificial Conditions.-A possessor may be subject to liability for physical injury or death to a trespasser if the possessor knows, or from facts within the possessor’s knowledge should know, that trespassers consistently intrude upon a limited area of the possessor’s land and-

(a) the trespasser’s harm was caused by the possessor’s failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for the trespasser’s safety; or

(b)(i) the trespasser’s harm was caused by an artificial condition created or maintained by the possessor; (ii) the possessor knew the condition was likely to cause death or serious bodily injury to such a trespasser; (iii) the condition was of such a nature that the possessor had reason to believe that the trespasser would not discover it, and (iv) the possessor failed to exercise reasonable care to warn the trespasser of the condition and the risk involved.]

[(4) Harms to Known Trespassers From Dangerous Activities, Highly Dangerous Artificial Conditions, or Controllable Forces.- A possessor may be subject to liability for physical injury or death to a known trespasser if-

(a) the trespasser was harmed as a result of the possessor’s failure to carry on dangerous activities on the land with reasonable care for the trespasser’s safety;

(b)(i) the trespasser was harmed as a result of the possessor’s failure to exercise reasonable care to warn the trespasser about an artificial condition maintained by the possessor; (ii) the condition involved a risk of death or serious bodily injury, and (iii) the condition was of such a nature that the possessor had reason to believe the trespasser would not discover the condition or realize the risk involved; or

(c)(i) the possessor knew or had reason to know that the trespasser was in dangerous proximity to a moving force in the possessor’s immediate control just before the harm occurred; and (ii) the trespasser was harmed as a result of the possessor’s failure to exercise reasonable care so as to prevent the force from harming the trespasser or failed to exercise reasonable care to provide a warning that was reasonably adequate to allow the trespasser to avoid the harm.]

(C) Definition.- “trespasser” means a person who enters on the property of another without permission and without an invitation, express or implied.

Section 3. {Severability Clause}

Section 4. {Repealer Clause}

Section 5. {Effective Date}

  Approved by ALEC Board of Directors on September 2010.

Keyword Tags: Civil Justice Task Force, Duty of Care, Landowner, Trespasser

Task Forces