What duty does a property owner or occupant owe to undiscovered trespassers? Is it the same as the duty they owe to discovered trespassers? Or guests? While each individual state establishes their own laws about what duty a property owner has to an undiscovered trespasser, there are certain common themes that apply from state to state.
Who is an Undiscovered Trespasser?
A “trespasser” typically is someone who is on property that doesn’t belong to them, either without the permission of the rightful occupant, or who has been told to leave the property by the rightful occupant, but refuses. An undiscovered trespasser, by definition, is not discovered, and thus falls into the first category, on the property without permission or claim of right.
Who Has a Duty – and What Kind of Duty Is It?
If there is, indeed, a duty to protect an undiscovered trespasser, it generally falls to the owner or occupant of the property (and sometimes both). In states that differentiate between undiscovered and discovered trespassers, land owners and occupants have the lowest duty to the undiscovered trespasser. However, not all states differentiate between the two. In every case, however, one must avoid willful or wanton misconduct.
What is “Willful or Wanton Misconduct?”
“Willful or wanton misconduct” sounds like legal mumbo jumbo to most people. Basically, willful or wanton misconduct is behavior that is done on purpose and is dangerous to others, intending to cause harm. Of course, every case is different, and, frankly, every fact matters. If a person, for example, installs an electric fence around their property, this is behavior “done on purpose.” However, assuming the degree of electric shock imposed is within the normal range for electric fences, the fence is not really “dangerous to others,” just a slight and temporary shock. On the other hand, if the landowner installs an electric fence and somehow manages to set the degree of shock to that rivaling the amount of electricity sent through the electric chair, this is not only “done on purpose” but is “dangerous to others” and is specifically designed to “cause harm” to anyone who encounters it. This is an example of willful and wanton conduct.
Similarly, in many areas of the country, one is allowed to hunt on their land. Firing a weapon while hunting is “done on purpose.” Generally speaking, pointing a weapon at a squirrel or a pigeon in the barn is only dangerous to the squirrel or pigeon. Of course, if you change the facts, you may change the result. Imagine, rather than hunting wild animals on one’s property with purpose and planning, the land owner sets up a trap. Using a camera with a motion detector, the land owner devises a plan to have a gun fire automatically any time the camera detects motion. This, too, is “done on purpose.” However, unlike hunting readily identifiable game, when a gun fires indiscriminately at anything that moves, there is a very real possibility this conduct is “dangerous to others.” Additionally, when a gun fires simply based on motion, without the benefit of an individual evaluating what or who the gun is firing at, this is unquestionably “dangerous to others” and demonstrates an “intent to cause harm.”
Fun Fact – The “Spring Gun Case”
The original “spring gun case” was litigated in Iowa in the 1971. In Katko v. Briney, a trespasser was injured by a spring gun after he broke into an abandoned farmhouse. He sued the owners of the property. The Iowa Supreme Court held human safety is more important than a landowner’s property rights. Thus, when the Brineys set up their spring gun, designed to fire upon the opening of an interior door of the farmhouse, they violated their duty to trespassers.
In recent years, the actual wire used to set up the shot gun trap in Katko v. Briney has purportedly come to light. In an interesting series of events, a first year law student informed her professor she knew the family that now owned the property in question in that landmark case (read by every first year law student). She further asserted the property owner was still in possession of the wire. While the authenticity of this artifact cannot be independently verified, it adds a fun twist to the story.
While facts and circumstances may vary, at the end of the day, proactive conduct by a land owner or occupant that is dangerous, designed to cause harm, breaches the duty to undiscovered trespassers.
Jeffrey Nadrich
Jeffrey Nadrich is a nationally-recognized California plaintiff’s personal injury attorney. He is a graduate of UC Berkeley and UC Hastings College of the Law. He has successfully represented thousands of injury clients over the last 40 years.
