Upholding Trespasser Responsibility

Landowners nationwide should be concerned about lawsuits by trespassers on their private property. Home owners, railroad companies, utility companies, factories, and farmers may all be at risk of liability for activities inherently out of their control. The American Law Institute is encouraging vast change in the law as it relates to trespassers.

To effectively freeze the law and preempt the use of the American Law Institute’s Restatement of Torts, Third to subject landowners to newfangled liability, ALEC members developed the Trespasser Responsibility Act. The model bill codifies what is generally accepted in common law: a property owner, occupier, or lessee owes no duty of care to a trespasser except in a few traditional exceptions.

To provide a bit of background, in most states, the common law has upheld that landowners owe no duty of care to trespassers and thus are not liable to them for civil damages except in certain specific situations. One wouldn’t expect landowners to owe anything to those on their property without authorization.

However, the American Law Institute’s Restatement of the Law, Third veers significantly from the norm on this issue. If judges choose to follow the Restatement, which they often do, landowners may now be subjected to civil liability for injuries to trespassers that occur on their land. The only exception given in the Restatement is one ill-defined and with potential to be quite weak in practice.

Thus, legislators should consider the Trespasser Responsibility Act to avoid this undue expansion of the law. Those considering work on this issue should take care to tailor the bill to their state. The model bill intends to codify the common law in a particular state and to maintain the status quo as a preventive measure.