Business Law 101 / TRESPASSERS

By Albert L. Kelley, Esq.

The final category of people who may be on someone’s property is that of the trespasser. A trespasser is someone who enters the property of another without a license, invitation, or other right. He is intruding on the property for reasons of his own, for convenience, or for no other apparent reason. In some circumstances, a licensee may become a trespasser. This includes if they continue to stay on the property after being told they are no longer welcome, or if they use their license to allow another unauthorized person onto the property. Trespassers include not just people on the property for no reason, but also those on the property for criminal purposes, such as burglars.

As hard as it may be to accept, property owners have a duty to trespassers. That’s right- a trespasser, including a criminal, may sue the property owner in some circumstances if they are injured on the property owner’s land.

The only duty that a property owner has to unknown trespassers is to avoid willful and wanton injury. It is not necessary that a property owner actually know of a trespasser’s presence before the occurrence of an injury for liability to set in. The property owner should take steps to prevent injury from known causes to anyone coming on the property, whether invited or not.   Once the trespasser is known, there is also a duty to warn them of any dangerous conditions that are not readily observable. The property owner who has knowledge of a danger that might create a risk to a trespasser is bound to take steps to protect the trespasser.

One of the classic law school examples resulted from a case in Iowa regarding a property owner’s liability for injury to trespassers. The case involved an elderly farmer who was having problems with burglars. After being robbed several times, he set up a trap for the burglars, consisting of a rifle pointing at knee height to the door that the burglars used for access. The trigger of the rifle was tied to the door so that opening the door would fire the rifle. The door was boarded up and a “No Trespassing” notice was posted, however when the thieves returned, one was shot. It was determined that the man’s actions were clearly willful and wanton misconduct and he was found fully liable for the trespasser’s injuries. The burglar was awarded $30,000 for his injuries (in 1967 dollars- roughly equivalent to $215,000 today).

The property owner must consider the following for liability to trespassers: was there an existence of a dangerous condition, what was the seriousness of the danger, does the property owner have actual or constructive knowledge of trespassers, does the property owner know of the dangerous conditions, does the property owner know of the location of the trespassers, was there an injury, could the property owner have avoided the injury, was the conduct of the property owner in conscious disregard of the risk of injury to the trespasser.

What happens if the trespasser is intoxicated at the time of injury? This is an important question in many cities. And the answer is favorable to the property owner. If the trespasser is legally intoxicated at the time of injury, or was otherwise affected by drugs or alcohol so that his faculties were impaired, the property owner is generally immune from liability, except in cases of gross negligence or willful and wanton misconduct that was the cause of death or injury.

Another defense in Florida is the Castle Doctrine that allows a property owner to us lethal force to protect himself if attacked in his home. This should not be read to protect property owners from liability for unoccupied properties or properties rented to others.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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