In a premises liability case, a “trespasser” is someone who enters another person’s property without the property owner’s permission and for the trespasser’s own purposes. In most premises liability cases, it does not matter whether the trespasser entered the property illegally or with a plan to do something illegal once he was there.
Premises liability law puts every person who might enter someone else’s property into one of three categories: licensee, invitee, or trespasser. Property owners owe a duty of care to anyone who comes onto their property, to ensure that visitors are not hurt. How much work the property owner must put in to protecting his visitors, however, depends on which one of the three types of visitor is involved.
A property owner’s duty of care to trespassers is very low compared to his duty to licensees or invitees. A property owner does not have to get rid of dangerous conditions on his property in order to keep trespassers safe. However, property owners may not create dangerous conditions that didn’t exist before in order to “trap” trespassers. Property owners are also not allowed to make an already dangerous condition worse in order to trap trespassers.
For example, a property owner may not dig a large hole on his property and then disguise it so that trespassers will fall in unawares. If the property already has a hole on it or the property owner is digging a hole for another reason, such as to put in the foundation of a new house, the property owner may not disguise the hole or put sharp sticks in the bottom of it so as to make it more dangerous to anyone who might trespass on or near the hole.
In addition to his duty not to create traps for trespassers or to make already existing dangers more threatening to trespassers, a property owner has a duty to warn trespassers of dangers that are already on the property. Often, a warning sign such as “Danger: Large Hole” or “Beware of Dog” is a sufficient warning, as long as anyone who might trespass on the property has a fair chance of seeing or hearing the warning before she encounters the danger.
When deciding whether a property owner has a duty to warn, some courts distinguish between trespassers the property owner knows about and trespassers he does not know about. If the property owner knows or has a good reason to believe that people are trespassing on his land, he has a duty to put up warnings for any trespassers, even if he has repeatedly told them to get off his property. If the property owner can’t reasonably foresee that trespassers will cross his land, however, he may not have a duty to warn.
In addition, most U.S. courts apply special rules to trespassers who are children, especially if they are enticed onto the property by an attractive nuisance. An “attractive nuisance” is a condition on the property that may attract children who are too young to understand the dangers associated with it. For example, swimming pools are commonly labeled attractive nuisances because children are drawn to them but may not understand the risk of drowning. A property owner has a duty to prevent children from getting at attractive nuisances, such as by putting up a fence, even though the children are trespassing.
A “trespasser” in a premises liability case should not be confused with a “trespasser” in an intentional torts case. A premises-liability trespasser only has to be on someone else’s property without the owner’s permission. An intentional-torts trespasser, on the other hand, must be interfering in some way with the property owner’s right to use his land freely. For instance, a woman who walks into her neighbor’s backyard without his permission is a premises-liability trespasser, but not an intentional-torts trespasser. However, if the woman dumps her trash bags in the middle of the neighbor’s backyard, she becomes an intentional-torts trespasser as well as a premises-liability trespasser.