Trespassing and Personal Injury – Can They Sue?

If you have been injured on someone else’s property, one of the factors that determine if you can get compensation is whether you were on the premises legally. Invitees and licensees are generally considered to be permitted on the property, such as if you were invited into someone’s home for dinner or entered a store to purchase something.

On the other hand, trespassers do not fall under either of these categories, so they generally are not able to get personal injury damages for premises liability. However, there are some important exceptions to this rule which we’ll look into.


If the owner is aware that someone is trespassing, that would be an exception to the rule. In the event that an owner is aware—or should have been aware—that someone was trespassing on the premises, then they can be held liable for that person’s injuries if they get hurt.

Another exception is that of willful or wanton conduct on the part of the owner. This includes unreasonably dangerous circumstances on the property or performing wantonly dangerous activities that could hurt someone who is trespassing.

To understand how this all works, let’s take a look at a couple of examples.

Example 1: Discovered Trespassers

Suppose Jim Downheart has the misfortune of having a backyard precisely between the nearest neighborhood and the local elementary school. Kids cut through his yard on the way to school every day, even though he has repeatedly shouted at them to stop and even sprayed a few with the hose.

On one school day, there is a pit in Jim’s yard from some work he’d been doing the day before. Expecting it to rain, he covered it with a tarp. Unfortunately, it lies very close to the path that elementary school kids take each day. One of them, named Billy, steps on the tarp and falls in, breaking his leg in the process.

In this case, Jim would be held liable for Billy’s injury because he 1) knew kids regularly trespassed on his property and 2) left a hazard on his property with no warning signs or barriers to keep them from falling in.

Example 2: Unreasonably Dangerous Areas

Georgia Tanner is absolutely fed up with deer eating her garden. She’s so fed up, in fact, that she sets up several steel-jaw traps for them throughout the garden, making the area quite blatantly (and unreasonably) dangerous.

After a couple of nights, she finds that her traps have caught something or rather, someone. The night previous, a university student had jumped her fence on a dare, resulting in nasty injuries to his left arm when he landed on one of the traps.

In this case, the college student was trespassing, and Georgia could not have known he’d be on the property. Nevertheless, the traps she set up made the area unreasonably dangerous and could therefore be considered wanton or willful conduct, thereby making her liable.

Gray Areas and Legal Help

In some cases, it can be difficult to prove one way or another whether the property owner is liable for a trespassing person’s injuries. Even if it’s clear cut, though, legal assistance-such as that provided by Hart & David—is necessary for a premises liability case.

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