Trespasser

What is a trespasser?

A trespasser is someone present on property without permission or legal right to be there, the third and most limited of the three visitor categories in premises liability.

This contrasts sharply with invitees and licensees, both of whom are present with the owner's consent in some form.

The reduced duty owed reflects a basic principle that a property owner should not bear extensive responsibility toward someone with no right to be present at all.

The classification is not about moral judgment, since someone can become a trespasser innocently, such as by taking a wrong turn onto private property without realizing it.

What duty is owed to a trespasser?

Generally the most limited of the three categories, though it is not entirely absent.

• No duty to inspect the property for hazards on the trespasser's behalf
• No general duty to maintain the property in a safe condition for them
• A duty to refrain from willful or wanton harm
• A duty to warn of known, hidden dangers in some circumstances once presence is discovered
• The attractive nuisance doctrine substantially changes this for children

How does the attractive nuisance exception work?

Where a condition is likely to attract children who cannot appreciate its danger, the ordinary trespasser rule can be significantly modified in the child's favor.

This reflects the reality that children may enter property specifically because of an attractive but dangerous feature, such as an unfenced pool, without any of the culpability an adult trespasser might have.

An owner aware that children are likely to trespass because of a specific hazardous condition may bear responsibility for securing it, even without any invitation being extended.

Can trespasser status change during a visit?

Yes, in both directions. Someone present initially as an invitee who wanders into a clearly restricted area may become a trespasser for that portion of the visit.

Conversely, if a property owner discovers a trespasser's presence and continues to allow it, the situation and applicable duties can shift depending on the specific circumstances.

This is why the classification is assessed with reference to the specific location and moment of injury, rather than treated as a single fixed status for an entire visit.

Common questions

Can a trespasser ever have a viable injury claim?

Limited circumstances exist, particularly involving willful harm by the owner, known hidden dangers, or the attractive nuisance doctrine where children are involved.

Does it matter if I did not know I was trespassing?

The classification generally depends on the objective fact of lacking permission, though the specific circumstances of the entry can matter to how the case is analyzed.

Does the attractive nuisance doctrine apply to teenagers?

Its protective force generally diminishes with age, since older children are increasingly expected to appreciate obvious dangers, though this depends on the specific hazard and circumstances.