LAW 512-001 – Torts II

Trespasser


A trespasser is one who comes onto another's land without permission or privilege.

In general, under both the common law and Restatement Second, a landowner owes no duty of care to a trespasser.

Exceptions:

  1. Discovered trespassers
    • Land owners/occupiers must use reasonable care to avoid injuring discovered trespassers by an active operation
    • Land owners/occupiers must warn of or make safe known dangerous artificial conditions unlikely to be discovered.
    • The Restatement Second also requires warning of passive conditions.
  2. Frequent trespassers to a limited area of land
    • When trespasser is anticipated, the land owner has a duty to exercise reasonable care to avoid reasonably foreseeable risk.
    • Defendant must anticipate (know or be reasonably expected to know) the trespassers and exercise reasonable care in his activities for their protection.
  3. Tolerated intruders
    • Continued toleration of a trespassers may amount to permission, turning them into licensees instead.