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Personal Injury And Trespassing

Summer brings with it a lot of adventure. Whether hiking through the woods, wandering through fields or getting out on the lake, we all like to enjoy the sunshine. This goes the same for the numbers of kids out of school and embracing their summer vacation.

We were all kids once, which meant we all trespassed onto someone’s property at one point or another. Maybe it was to fulfill a dare or to take a shortcut to a desired destination, all of us have likely had first-hand experience with trespassing. But what would happen if someone trespassing, perhaps a child playing without your permission, sustained an injury while on your property? Who is responsible?

As is the case with many laws the answer is quite complicated. The very question of who is responsible opens the door to a great deal of litigation each and every year. To make matters even more confusing, each state has its own way of handling the situation leaving room for misinterpretation and misunderstanding.

Trespasser Duty

There are many jurisdictions that follow the common law tradition that a landowner owes no special duty to trespassers. Despite this conviction to tradition, this does not clear the landowner of any duty to a trespasser. Undiscovered trespassers must not be handled with a willful or reckless manner. More simply stated, the landowner cannot intentionally harm the trespasser if they do not pose a threat or engage in aggressive behaviors. Should a trespasser be discovered, or be found to have been on the land owner’s property without permission, the land owner must act with ordinary care.

Comparative Fault

As you can see, the land owner has a set of rules and guidelines from which to follow a case involving trespassing, but what about the trespasser themselves? A trespasser owes a duty not to enter onto one’s property without the owner’s position. This is also where the “unclean hands doctrine” comes in which states that a person cannot come to a court asking for a ruling based on what is right and fair when the claim only arises by virtue of that person’s own inappropriate conduct.

That being said, claims for actual injuries and monetary damages have still survived the trespasser’s own legal faults before. Many of these instances result from the state’s finding of which party was more at fault for the injury: the landowner or the trespasser. For example, in some states, if the trespasser is even 1% at fault, then that acts as a complete bar to recovery. Other states use a comparative negligence computation which determines at what percentage each party was responsible and then applying that percentage to the claim. Essentially, the trespasser only receives a portion of their total claim from the landowner proportionate to the landowner’s comparative fault.

Still Confused

Don’t be embarrassed, this is an extremely complicated topic. While it may sound simple and straightforward, it is anything but. If you find yourself in a similar situation, regardless of whether or not you are the trespasser or land owner, it is best to contact an attorney to provide legal counsel. Doing so will help clarify an overwhelming maze of legal analysis.