According to the U.S. Census Bureau, there are about 135 million homes in the country. Nearly 64% of them are owner-occupied. Owning property today carries both rights and responsibilities for homeowners. For instance, what you do with your home is largely up to you. You have a right to maintain, remodel or sell it as you wish. Although limited by certain laws and regulations, your homeownership rights are relatively extensive. By the same token, you are responsible for maintaining your property so as to prevent injury to the courier delivery guy or social guests visiting your property. This duty is called premises liability. (Learn more: What is Premises Liability?) But what about trespassers?
A trespasser is someone who enters onto your property without authority or consent. Generally, you are not liable when someone is injured on your property while trespassing. However, in the eyes of the law, there are typically three types of trespassers, and as a homeowner, you need to be aware of your legal obligations when it comes to all three of them.
The Undiscovered Trespasser
An undiscovered trespasser is someone who enters onto your property without an invitation, and whose physical presence on your property is unknown to you.
Assuming people will obey the law and not trespass on your property, you are not obligated to protect such trespassers--as long as you have no intent to cross the line by "willfully or wantonly" injuring them. Acting in a "willful or wanton" manner, on the scale of wrongdoing, typically means doing something that falls somewhere between an intentional infliction of harm and gross negligence. (More: What is Negligence?)
For example, imagine your neighbor is standing on a ladder that has been placed partially on your driveway, between your home and her home. Unaware of her presence, you back your car down the driveway, striking the ladder. Since your neighbor was a trespasser on your driveway without your knowledge or consent, there is probably no liability for any resultant injury.
On the other hand, creating deterrents for uninvited hunters to stay off your property -- through the strategic placement of dangerous hazards, booby-traps, and other devices -- will likely result in legal liability if anyone is injured as a result.
The Discovered Trespasser
Once you discover the presence of a trespasser on your property, you are under a duty to exercise ordinary care to warn him or her of any particular danger, or make safe any artificial conditions you are aware of so as to prevent any risk of death or serious bodily harm. (Learn more about the Duty of Care in Personal Injury Cases.)
For example, say you notice occasional trespassers walking across your backyard as a shortcut to the local park. Since you are aware of their presence, you likely have a duty to warn the trespassers about a semi-hidden and relatively large hole behind your garage. You can do this by cornering off the area with a temporary fence, or by taking other precautionary measures.
Another example is when an uninvited salesperson enters onto your property to knock on your front door. Until you repair the cracked concrete walkway, you will need to warn her about the tripping hazard leading up to your door, otherwise you could face slip and fall liability.
The Child Trespasser
Another type of trespasser is the child who wanders onto your property without permission. Because of their young age, children are naturally playful and curious. But if you create an artificial hazard on your property that lures them onto it, you may be liable for resulting injuries, especially if the children are unaware of the dangers posed by the hazard.
Such artificial or human-made hazards are known as “attractive nuisances.” They include conditions such as an unguarded swimming pool, an abandoned well, old cars, or heavy machinery. They do not include naturally occurring hazards such as ponds, lakes or steep embankments.
As a homeowner, you probably need to inspect your property to see if it contains any artificial hazards or conditions that might attract child trespassers. If there are, you’ll need to either correct or contain the dangers to protect the safety of children who may wander onto your property. If you fail to do so, you will most likely be liable for injuries to the children, especially when the cost to repair or maintain the artificial hazard is small in comparison to the potential risk involved.
If in doubt about whether a condition on your property constitutes an attractive nuisance, use common sense and good judgment to make sure children cannot gain access to it.
Need More Information?
Since laws related to trespasser liability vary by state, you might want to talk to an experienced lawyer in your area to get help tailored to your situation. Learn more about Finding and Working With a Personal Injury Lawyer.