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Trespassers Welcomed – Landowner Beware! By Lonna Perkins

Page history last edited by PBworks 17 years, 10 months ago

Trespassers Welcomed – Landowner Beware! By Lonna Perkins

 

 

 

Thesis Statement: A landowner should not be held liable for injuries sustained on his/her property when the injured party is uninvited and trespassing on the landowner’s property. Traditionally, when a trespasser entered another person’s property, the landowner had no duty of to the trespasser.

 

 

 

California courts are beginning to blur the lines between invitee, trespasser and licensee. The courts are beginning to impose a single standard of care regardless of the entrant’s status, which would impose a duty on the landowner for all who enters his property.

 

 

 

Scope of Paper: This paper will discuss the trend of California courts in imposing a duty of care on landowners for trespassers or intruders who enter the landowner’s property without consent. California has adopted negligence principles that place an unfair duty of care upon landowners. This paper will compare California with other states, many of which are reluctant to give up the traditional laws regarding trespassers.

 

 

 

Duty to trespassers?

 

 

 

Historically, the emphasis placed on land ownership was consistent with concepts of economic importance and the desire to have free use and exploitation of one’s land. The landowner always had the upper hand when it came to liability for people entering their property.

 

 

 

After the Industrial Revolution, three categories of entrants were established: licensee, invitee and trespasser. The landowner owes an invitee a duty of care and to warn the invitee of any obvious or hidden dangers the invitee might encounter. Similarly, a landowner owes a licensee a duty to refrain from any willful wrongdoing and to warn the licensee of any hidden dangers the licensee might encounter. The trespasser enters the property without any permission and the trespasser traditionally is owned no duty except to refrain from any willful wrongdoing. In other words, a landowner cannot deliberately set any traps for intruders.

 

 

 

A duty or legal obligation is established when there is a direct relationship between the parties. n1 In instances where a stranger enters a landowner’s property, there is no relationship between the parties and therefore there should be no duty of care to the trespasser. If a trespasser is drunk and enters the property and trips over a fence, to hold the landowner responsible would be unjust.

 

 

 

In most states, trespassers fall into two categories: undiscovered and anticipated or discovered. There is not duty whatsoever to the undiscovered trespasser. And, the landowner only has a duty to warn anticipated or discovered trespassers of any harmful conditions that may be hidden on the property.

 

 

 

Many states, including California, have changed the landowner standard and have been leaning toward abolishing the categories of trespasser, licensee and invitee. The current standard is that a landowner owes a general duty of reasonable care to everyone whether the person is a licensee, an invitee or a trespasser. The exception is that landowners do not owe a duty of care to individuals who enter the property in order to commit a felony. Then, in order to meet this exception, the individual must be charged and convicted of a felony.

 

 

 

This new standard is unfair to landowners and puts undue pressure and possibly financial strain on landowners to ensure their property is free from any known dangers. If the danger is unknown, the landowner is then penalized for not discovering the danger. There is no reason to change the common law standard other than it invites trespassers and/or intruders onto private property without deterrence.

 

 

 

Current Cases in Landowner/Trespasser Law

 

 

 

In the Minnesota case of Croaker v. Mackenhausen, the appeals court reversed a jury’s verdict in favor of children who were trespassing on property, created a fire and were killed or injured as a result. n2 The children’s parents sued alleging the landowner maintained an attractive nuisance. The appeals court found there must be reasonable foreseeability. There was no evidence the landowners would have known the children would trespass and start the fire with products found in the landowner’s storage shed.

 

 

 

In this case, although the landowners knew the children might trespass onto their property, there was no reason to suspect the children would enter the storage shed and start a fire. The court rightfully reversed the jury’s verdict and finding no liability on the landowners for the injuries and unfortunate death for children who entered their property without permission.

 

 

 

In Maine, an invitee to one part of the landowner’s property was injured in another part of the property to which he was considered a trespasser. The guest for invited for dinner at the main house. The guest left the house to smoke a cigarette, curious about the new home being built by the landowner and decided to take a look at the construction. While at the construction site, the trespasser fell in a hole and sustained injuries.

 

 

 

The court in this case, Inkel v. Livingston, affirmed the lower court’s decision that although the plaintiff was an invitee, the plaintiff ventured onto a part of land where he was not invited. n3 The landowner had no reason to believe the plaintiff would be in danger of injury and owed no duty of care to the plaintiff for that part of the property.

 

 

 

The Supreme Court of Wyoming was very forthcoming with their opinion in Yalowizer v. Husky Oil and flat-out rejected an opportunity to adopt California’s standard. n4 The Wyoming court found the landowner had no duty to make his property safe for trespassers who entered the property without consent and refused to assess any duty of care on the landowner .

 

 

 

Plaintiff in Micromanolis v. The Woods School, Inc., climbed over a four-foot fence to enter defendant’s property, walked several minutes to reach the pool area, and climbed over a six-foot fence to enter the pool area. n5 Although there was no lighting, Plaintiff dove head first into the pool, and was injured when his head struck the bottom of the pool. Plaintiff filed a lawsuit in the Pennsylvania court against the landowner alleging negligence.

 

 

 

The Judge granted defendant’s motion for summary judgment and stated: “I do not believe that as a matter of law duty should be imposed upon the defendant, the owner of a swimming pool on a large fenced-in campus around which pool itself is a six-foot fence, to the plaintiff, or any other person using the pool without the owner’s permission.”

 

 

 

Under Pennsylvania law, the landowner only has a duty to trespassers to refrain from willful and wanton misconduct. “The legal obligation to trespassers is the avoidance of willful and wanton misconduct.” (Evans v. Philadelphia Transportation Co.) n6

 

 

 

Wanton misconduct means “that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person’s peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a peril exists for a sufficient time beforehand to give the actor a reasonable opportunity to take means to avoid the injured person’s accident; the actor is wanton for recklessly disregarding the danger presented.” N7

 

 

 

In Arizona, the Plaintiff in Tate v. Cole was injured when he was injured by a huge pile of dirt left on the property. n8 The landowners knew the dirt was being removed by various individuals but was not supervising the removal. Furthermore, the landowner had no knowledge of the dirt being used by bikers to practice various stunts. In Tate v. Cole, the court indicated two situations in which landowners might be found liable to trespassers under Arizona law.

 

 

 

The first basis for liability could be found under Restatement (Second) Torts §§337 and 341. Section 337 states that “ a possessor of land who maintains an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if (a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and (b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.”

 

 

 

The second basis for Arizona law, Section 341 of the Restatement indicates that “a possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land if (a) the condition (i) is one which the possessor has created or maintained and (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and (iii) if of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to warn such trespassers of the condition and the risk involved.”

 

 

 

The one distinction California courts make is when it comes to duty of care for persons entering property for recreational use. In Charpentier v. Von Geldern, the plaintiff sustained injuries when he dove into a shallow river that bordered the defendant’s property. n9 The plaintiff alleged that defendant failed to warn against the dangerous conditions in the river, which was too shallow for swimming and diving.

 

 

 

The California Court of Appeals disagreed with the plaintiff stating that the landowner was “immunized from liability pursuant to Civil Code § 846 since the swimmer had entered the owner’s land for recreational purpose” without the owner’s permission. The court offered that “pursuant to Civil Code §846, the non-paying, uninvited recreational user of private land is owed a duty by the landowner no greater than that owed a trespasser under common law and, therefore, absent willful or malicious conduct by the landowner, the user assumes the risk of any injury that might occur on the land.”

 

 

 

This statute benefits only the wealthiest of landowners by removing the threat of tort liability so that the landowners keep their properties open to the public. As the court stated in Charpentier, “if such landowners were exposed to the risk of negligence for injuries sustained by trespassing recreational users, the effect would undoubtedly be to encourage them to withdraw hundreds of miles of riparian and littoral land, as well as beaches, from recreational access.”

 

 

 

The court made reference to the discrepancies of CC 846 in Domingue v. Presley of Southern California when it stated: “ the most fundamental rule of statutory construction is that ‘the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law . . . The provision must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief and absurdity. . .” n10

 

 

 

Conclusion:

 

 

 

In Rowland v. Christian, the California Supreme Court held in this landmark case that the appropriate test for landowner liability is liability pursuant to Civil Code §1714 and based on whether the landowner acted reasonably with regard to the care of the property. Civil Code §1714 imposes a duty requiring landowners to exercise due care in the management of his property to avoid injuries to others. Several states have followed the rationale of Rowland, but these states are still in the minority. The majority of the states remain loyal to the traditional categories and applications of the common laws of trespassers.

 

 

 

Under California’s current standard, the jury is allowed to establish whether the landowner was liable in light of the facts of the case. Whether the entrant to the property was a licensee, invitee or trespasser is irrelevant. At this time in our society when some individuals lack a respect for other’s property, this standard is unfair to landowners.

 

 

 

For example, consider that a landowner is elderly and cannot get around to inspect his property as he did thirty years ago. Unbeknownst to the landowner, a mole digs a hole in the yard. Shortly thereafter, a trespasser’s slips into the hole and breaks his foot. This case should never go to the jury to determine liability. The trespasser should be barred from filing a lawsuit and burdening the homeowner unnecessary attorneys’ fees and other expenses.

 

 

 

California should follow the common law principles of premises liability and hold the trespassers accountable for their own safety when entering private property uninvited as the courts do in instances of recreational use. Civil Code Section 846 provides, in part: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose . . .”

 

 

 

If the California courts do not hold landowners legally responsible to trespassers who enter property without permission for recreational purposes, there is no reason to hold landowners responsible for injuries sustained by trespassers who enter one’s property with permission for any other reason. This law is contradictory and there is no reason for the distinction.

 

 

 

Footnotes:

 

 

 

Fn1 http://wikipedia.org/w/index/Trespasser

 

Fn2 Croaker v. Mackenhausen, 592 N.W.2d 857 (Sup. Ct., Minn., 1999)

 

Fn3 Inkel v. Livingston, 869 A.2d 745 (Sup.Jud.Ct., Maine 2005)

 

Fn4 Yalowizer v. Husky Oil Co., 629 P.2d 465, 469 (Wyo. 1981)

 

Fn5 Micromanolis v. The Woods School, Inc., 989 F.2d 696; 1993

 

Fn6 Evans v. Pennsylvania Transportation Co., 418 Pa. 567, 212 A.2d 440, 442 (1965)

 

Fn7 Ott v. Unclaimed Freight Co., 395 Pa.Super, 483, 577 A.2d 894, 897 (1990)

 

Fn8 Tate v. Cole, CV 90-16201, No. 90-16350, 91-15048, CV-89-218-TUC-RMB

 

Fn9 Charpentier v. Von Geldern, 191 Cal.App.3d 101, 236 Cal.Rptr. 233; 1987 Cal.App. 1585

 

Fn10 Domingue v. Presley of Southern California, 197 Cal.App.3d 1060; 243 Cal.Rptr.312; 1988 Cal.App.43

 

Fn11 Rowland v. Christian (1968) 69 Cal.2d 108, 119

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