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Trespassers Have a Tough Time Recovering Damages

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Trespassers Have a Tough Time Recovering DamagesWhen we think of someone who is a trespasser, we often think of a criminal; someone who secretly and illegally invades someone else’s property with the intent to cause harm and who is there against the will of the person who owns the property.

But in law, a trespasser is often someone who is more innocent than that, and in fact, most of us may have innocently trespassed at some point or another. Whether you are a trespasser or not can make a big difference in the duty that a landowner owes to you if you are injured on his or her property.

Victim Injured as a Trespasser

A typical example of how someone can unknowingly become a trespasser occurred in a recent Florida case. The victim in the case was walking home from a cruise, and wanted to take a shortcut home. To do that, it required walking through a mall parking lot, and through some paver stones adjacent to the mall, and finally, around a guardrail.

The walkway through the mall was in fact owned by the city, which had an easement for public utilities. The walkway contained numerous storm pumps, which were owned and maintained by the city. Testimony at trial was that many people who were not actually shopping at the shopping center used this cut through, short cut, or walkway, and that there was no “no trespassing” sign visible.

As the victim was walking on the walkway, she fell on a loose paver stone, was injured, and filed suit. She sued both the mall and the city, as owner of the easement. The case was thrown out by the Trial Court, which felt that the victim’s status as an uninvited licensee or a trespasser meant that neither the city nor the mall could be held liable for the victim’s injuries.

Status on Property Matters

The law of premises liability sorts those who are injured into three separate categories: invitees, licensees, and trespassers. The distinction is important because businesses have an elevated or reduced duty towards people injured on their property depending on a victim’s status. In other words, it is much harder to find a business liable for injuries caused to someone on their property when the person is a trespasser than if the person is an invitee or a licensee.

Normally, people who are on business premises are invitees; as the name suggests, they are invited by the business to enter the property (in fact, most businesses want people entering their property for the benefit of the business). An objective test is used; if a reasonable person would believe that he or she is welcome and invited onto a business’s property, a person will be considered an invitee.

But people are not just either invited or trespassing because the law recognizes that in between these two are “uninvited licensee.” This is a term that represents someone who is not invited onto the  property, or perhaps are not even allowed on it, but the owner of the property knows that the person is there and tolerates it.

One example would be running into a store to get out of the rain. You are not invited onto someone’s property to take cover from the elements and businesses do not invite people to use them for free cover from rain Nonetheless, the business knows people do it, sees it, and simply tolerates it.

Trespassers enter someone else’s property without invitation and with no right to do so, often just for the person’s own curiosity. Trespassers who are known by the business owner and tolerated can be considered uninvited licensees.

Court Finds Victims are Trespassers

In the case mentioned above, the Court noted that the victim was on the property late at night after business hours and not there to visit any of the businesses. The Court also found that no reasonable person would think that the walkway was intended to be used for people to cut through the property, or that the property was intended to be used that way.

The victim attempted to argue that an implied invitation was created by the lack of the “no trespassing” sign, but the Court found otherwise. While having a “no trespassing” sign can make it clear to visitors that they are trespassing, not having one does not automatically elevate people from trespasser to uninvited licensee. 

Because the Court found the victim to be a trespasser, both the city and the mall only had an obligation to avoid willfully injuring someone, or to warn of dangers that others on the property could not otherwise know about. The damaged pavers were in plain sight for all to see, and even if they had been concealed, the Court held that because the defendants did not previously know that the victim was on the property, they had no duty to warn of any part of the condition that could be considered concealed.

Be Wary of Your Status on Property

It goes without saying that you should always avoid being on someone’s property without his or her permission. The bigger lesson is not to assume that property is open for you to use or walk through. Just because other people may use property a certain way or because a landowner may look the other way at people on his or her property, doesn not mean that he or she owes you any real duty of care.

If you are injured on someone else’s property, factual questions related to who is on property and when and whether a reasonable person would believe themselves to be invited, can be the difference between winning and losing an injury case.

If you or a loved one are injured on someone else’s property, contact Brill & Rinaldi today about a free consultation to discuss your case and to determine who may be responsible.

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