When it comes to property owners’ “duty of care” to keep their premises safe, the standard is typically not the same for trespassers as it is for those who have a right to be on an owner’s property – like employees, customers, vendors, delivery people and visitors.
A trespasser is anyone who doesn’t have a legal right to be on a particular piece of real property. Property owners typically don’t have any obligation to protect them from harm. (There are exceptions for children under the “attractive nuisance” doctrine.)
However, property owners can’t do anything to intentionally injure trespassers. They can’t “booby-trap” an area with an unmarked electrical fence, for example, or shoot trespassers simply for coming onto their property.
What about properties where trespassers are likely?
There are exceptions when a property owner can reasonably expect an area to attract trespassers. One example might be a construction site. People are often drawn to these – particularly if a home is being built.
Another example might be an empty retail or office space. Sometimes, those sit unused for months or even years. They can be tempting for someone who wants to take shelter from the elements, and they’re often relatively easy to get into. A window or door lock may already have been broken and not repaired.
In cases like these, property owners can be held to a higher standard. For example, if there’s a condition on the property that they know about like faulty wiring or toxic chemicals, they could be held liable if a trespasser is harmed or killed.
Construction sites contain numerous potential dangers. That’s why it’s crucial to ensure that there is clear and sufficient signage around the site warning people not to enter and barriers to entry where appropriate and when no one is at the site. Security guards may be necessary. It’s also important to take care that there are no unnecessarily hazardous conditions that could harm someone who has trespassed.
Trespassers can – and do – sometimes take legal action when injured
It’s not unusual for someone who was trespassing to file a lawsuit if they’re injured. While some can’t make a viable case, it’s not always black and white. For example, if an office space undergoing renovation is filled with asbestos or toxic mold that hasn’t yet been removed, even a trespasser could prevail by claiming that there should have been warning signs – especially if the space wasn’t locked.
Property owners should always be aware of their legal responsibilities for keeping those who come onto a property safe – even those who are uninvited. If a trespasser files a lawsuit alleging harm, it’s important to take it seriously and seek experienced legal guidance accordingly.