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Homeowner Liability for Trespasser Injuries

It's late at night, and a robber is staking out your property for a heist. You're in bed early and the car is in the garage, perhaps giving the impression that no one's home. But as the would-be robber creeps toward the back door, stepping onto the tarp covering a deep hole you were digging for your new hot tub, he suddenly falls and breaks his leg.

You didn't mark the area or provide lighting, but you also didn't expect someone to be creeping around your yard late at night. Question is, are you liable for his injuries? In this particular case, probably not. But sometimes homeowners can be held liable for trespassers' injuries.

What is a Trespasser and When are You Liable for Their Injuries on Your Property?

A trespasser is someone who is not authorized to be on the property at issue. Landowners are not obligated to protect trespassers who enter their property without permission, but they cannot willfully injure them. Also, if a landowner knows — or should know — that there are frequent trespassers on his/her property, he or she may be liable for any injuries caused by an unsafe condition on the property if:

  1. The condition is one the owner created or maintained
  2. The condition was likely to cause death or serious bodily harm
  3. The condition was such that the owner had reason to believe trespassers would not discover it (before becoming injured by it)
  4. The owner failed to exercise reasonable care to warn trespassers of the condition and the risk presented

See Property Owners' Legal Duty to Prevent Injury to learn more about general premises liability.

Trespassing Children and Liability for Injuries

A different rule applies when trespassing children are involved. In the case of children who wander onto property without authorization, property owners do have a duty to ensure that their property is safe. The logic behind this exception is that children are sometimes naïve to dangers on property and could be lured to dangerous conditions such as an unattended swimming pool, an abandoned well, or heavy machinery. These potential hazards are referred to as "attractive nuisances," since a reasonable person should know that such conditions were likely to attract children.

Thus, a property owner has a duty to inspect his/her property to see if there are any potentially dangerous conditions that might attract children and, if there are, act immediately to correct the unsafe condition(s). A property owner may be liable for an injury to a trespassing child if he/she knew, or should have known:

  1. Young children were likely to trespass in the area of a dangerous condition on the property that involved an unreasonable risk of bodily harm to children
  2. Young children would not be aware of the risk
  3. The utility of the condition is small compared to the risk it represents

Have Questions About Homeowner Liability? Get a Free Legal Evaluation Today

While it's important to maintain a safe property, homeowners can't be expected to prevent each and every injury that could occur on their premises. You may want to consult with a premises liability attorney if you've been sued by an injured trespasser or want to avoid any future legal problems. Get started today by having an experienced real estate attorney evaluate your concerns for free.

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