Updated: Apr 26
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I am often asked during presentations what happens if a trespasser gets hurt on an owner’s property. The answer to this question is not always straightforward and can often depend on the facts of each case. In Maryland, a property owner or tenant owes a duty of care to trespassers to refrain from willful and wanton injury. The best way to look at this is that an owner or tenant cannot knowingly add features to the property that could injure a trespasser. Owners or tenants doing this could breach the duty of care owed to a trespasser.
The first question we need to answer is, who is a trespasser? Trespass can take two forms, criminal or civil. This post will only focus on the civil form of trespass. To be a trespasser, the owner or tenant would need to show the following:
Other person occupied or exercised some control over owner/tenant’s property;
Control or occupation of the owner/tenant’s property occurred because of the other party’s physical act or force against the property; and
The other party did not have the owner/tenant’s permission to be on the property.
With civil trespass, the owner/tenant could sue the trespasser for damages caused while trespassing.
Let us look at an example to understand the portion above better. Kayla rides an ATV in what appears to be an empty field. Kayla’s ATV joyride destroys a part of Daniel’s soybean crop. Kayla occupied or excised control over Daniel’s property. He did not permit her to be on the property. Daniel could sue Kayla for the damage caused to his soybean crop by the trespass.
What happens if, while trespassing, Kayla wrecks the ATV and is injured, can Daniel be held responsible for her injuries? The answer to this question depends on if Daniel has refrained from willful or wanton injury of Kayla while she is trespassing. A willful means that Daniel had actual knowledge or the equivalent of actual knowledge of potential peril that Kalya could face and consciously failed to avert the injury. Wanton means conduct that is extremely dangerous and outrageous and done with a disregard for the rights of others. For example, if Kayla’s wreck were caused due to her poor driving or hitting a natural feature on the land, then Daniel would probably not be held liable for Kayla’s injuries.
But if Daniel growing tired of trespassers on his farmland, set up traps that could be dangerous to a trespasser, and those traps cause Kayla to wreck, then Daniel is probably liable for Kayla’s injuries from the wreck. For example, if Daniel placed a low-hanging wire across the property in a spot that trespassers are known to cross on and did nothing to make the wire visible to trespassers. If Kayla rides into the wire, which causes the accident, this has been an excellent example of willful and wanton injury based on prior court decisions.
Concerns about trespasser liability is just one liability that should concern landowners/tenants. We cover this topic in a new self-paced online course that is free to participate in. We also cover livestock liability, fencing, right-to-farm, agricultural leasing, and estate planning laws. You can find all the details here and enroll in the course.