A landowner has no duty to keep premises in a safe condition for the benefit of trespassers[i]. An owner does not possess any duty to a trespasser under the traditional common law view except to abstain from willful or wanton misconduct or entrapment[ii].
Willful misconduct is that which is performed with the actor’s actual knowledge or with what the law deems the equivalent of actual knowledge of the peril to be apprehended, coupled with a conscious failure to avert injury. Whereas, a wanton act is performed with reckless indifference to its potentially injurious consequences[iii]. This rule of limited liability to trespassers permits a person to use his/her own land as s/he likes without the burden of protecting those who come there without permission or right.
Trespassers may be classified either as discovered or undiscovered. If a person is an undiscovered trespasser, then the landowner has a duty to refrain from willful or wanton misconduct. Whereas, if a landowner knows that trespassers have been on his/her land, then these persons are discovered trespassers to whom the landowner owes the duty of ordinary care to warn of danger[iv].
A landowner will owe only 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 maintained an artificial condition that s/he has reason to know is dangerous and that the danger will not be discovered or appreciated by the intruders[v].
It is to be noted that a landowner does not have any obligation to keep his/her premises in a non hazardous state. His/her only duty to a trespasser is to abstain from acts willfully injurious[vi]. The duty of an owner towards a trespasser applies also to personal property. Ordinarily, an owner of property is not bound to anticipate and provide for the presence of trespassers, since s/he may properly assume that they will not enter into the property[vii]. Similarly, an owner or occupant of premises does not owe any duty to trespassers to protect them from perils or hazards on adjoining or neighboring premises over which the possessor has no control.
However, a possessor of land owes the same duty of careful action towards a known trespasser as s/he owes if the same situation arises in a place in which both the possessor and the trespasser have an equal right or privilege to be[viii]. A mere trespasser who goes upon the premises of another on business of his/her own, or who goes as a mere pleasure seeker, or as one prompted only by curiosity, cannot claim from the owner of the premises any further duty than that traps or pitfalls may not be set or permitted in his/her way[ix].
In some jurisdictions, a trespasser must prove something more than ordinary neglect on the part of the owner to entitle him/her to recover. It is to be noted that the observance of due care by a possessor of premises towards a trespasser requires no affirmative conduct to render the premises safe for the trespasser’s use, but only that the possessor must refrain from injuring the trespasser unnecessarily. There must be conduct which manifests a wanton and reckless disregard of the safety of others. There must be at least the suggestion of a willful, intentional wrong[x]. Under some jurisdictions, there is no heightened duty to foreseeable trespassers for artificial conditions[xi]. However, the law does not impose upon owners and possessors of land a higher duty to protect from injury adult trespassers with emotional disorders.
It was observed in Brigman v. Fiske-Carter Const. Co., 192 N.C. 791 (N.C. 1926) that a trespasser who comes on the land of another without right cannot maintain an action if s/he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers.
[i] Herman v. Andrews, 50 S.W.3d 836 (Mo. Ct. App. 2001).
[ii] Hicks v. Hitaffer, 256 Md. 659 (Md. 1970).
[iii] Doehring v. Wagner, 80 Md. App. 237 (Md. Ct. Spec. App. 1989).
[iv] Whitener v. Firwood Inv. Co., 1995 Ohio App. LEXIS 3986 (Ohio Ct. App., Montgomery County Sept. 13, 1995).
[v] Hensley v. Salomone, 2005 Ohio 187 (Ohio Ct. App., Cuyahoga County Jan. 20, 2005).
[vi] Standiford v. Bernhardt, 13 N.J. Super. 357 (App.Div. 1951).
[vii] Attardo v. Ambriscoe, 147 Conn. 708 (Conn. 1960).
[viii] Comstock v. United States, 114 F. Supp. 632 (D. Md. 1953).
[ix] Gandy v. Copeland, 204 Ala. 366 (Ala. 1920).
[x] Comstock v. United States, 114 F. Supp. 632 (D. Md. 1953).
[xi] Estate of Zimmerman v. SEPTA, 168 F.3d 680 (3d Cir. Pa. 1999).
