Heymann & Fletcher

Duties a property owner may owe a trespasser

When you are at someone's home or on property owned by someone else, that property owner may owe you a measure of safety. It all depends on who you are, how you know the owner, the reason you are there, if you had the ability to use caution and whether or not it's a public policy concern.

Trespasser: If you are an adult and do not have permission or were not invited onto the property, you are trespassing. As a trespasser, the owner does not owe you a duty to keep you safe other than to refrain from some intended action that would cause injury or death (e.g. not setting traps or shooting you).

The caveat here is if the trespasser is a child. Since children can be curious, easily enticed and often do not have the capacity for sound judgment with regard to their own personal safety, an owner who has an "artificial condition" on the property is liable for any harm caused by it if:

1. The owner knows children are likely to be near the condition;

2. The owner knows that the condition is dangerous to children;

3. The trespassing children either do not discover the condition or do not realize the risks;

4. The use of and maintenance of the condition and removing any danger is small in comparison to the risks to children;

5. The owner fails to make any attempt to reduce the risks of danger;

For example, your neighbor has a swimming pool that is ground level in his or her backyard. It is well known and common knowledge that children are drawn to pools like moths to a flame. Knowing children are in the neighborhood and a pool of water can be dangerous to a careless child, if they fail to reduce the risks or remove the danger, the property owner could be liable for any injury or death that occurred as a result even if the child snuck in without their knowledge or permission. However, if the owner has no reason to believe or anticipate children would be anywhere near a potential hazard, then they have no duty to ensure the safety of children and would not be liable for any injuries.

Of course there are other details that may be considered, such as whether or not a posted warning was sufficient, if the child was old enough to know better (it is presumed that a child under 7 would not) and whether or not the condition that caused the injury was a natural occurrence.

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Heymann & Fletcher
1201 Sussex Turnpike
Randolph, NJ 07869

Toll Free: 800-481-8549
Phone: 862-781-0029
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Heymann & Fletcher
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PO Box 518
Mount Freedom, NJ 07970

Toll Free: 800-481-8549
Phone: 862-781-0029