Under Australian law, occupiers are deemed to owe a duty of care to trepassers. However, as in most jurisdictions, such duty is not as high as with the other categories of visitor (contractual, invitees, licensees and entrants as of right). The modern guideline of liability is “common humanity. ” Australian courts have held that the duty of care exists when children are involved due to the fact that many things that act as warnings for adults do not deter children but sometimes lure them.
The degree of liability of the occupier to trespassers depends on the specific set of facts. Liability to Trespassers under State Legislation West Virginia A 1965 West Virginia law reduced liability for landowners who allow recreational users to use their property freely. The law states that landowners owe no duty of care to maintain safe conditions or to warn visitors of dangerous conditions if they don’t charge a fee or benefit otherwise.
Recreational visitors are, therefore, treated as trespassers. The law has since been amended to permit the landowner to charge a $50 fee. Illinois Under 740 ILCS 130, the Premise Liability Act, Illinois has removed the distinction. The law provides that the distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The law also defines the liability of the occupier to entrants.
The duty of reasonable care under the circumstances which an owner or occupier of land owes to such entrants does not include any of the following: a duty to warn of or otherwise take reasonable steps to protect such entrants from conditions on the premises that are known to the entrant, are open and obvious, or can reasonably be expected to be discovered by the entrant; a duty to warn of latent defects or dangers or defects or dangers unknown to the owner or occupier of the premises; a duty to warn such entrants of any dangers resulting from misuse by the entrants of the premises or anything affixed to or located on the premises; or a duty to protect such entrants from their own misuse of the premises or anything affixed to or located on the premises.
The law also provides that an owner or occupier of land owes no duty of care to an adult trespasser other than to refrain from willful and wanton conduct that would endanger the safety of a known trespasser on the property from a condition of the property or an activity conducted by the owner or occupier on the property. New York New York state legislation has removed the distinctions between the different kinds of entrants. Instead, there is one standard referred to as the “reasonableness under the circumstances” of a particular case.
Under this standard, the occupier generally owes a lesser duty of care to a trespasser. However, the liability of the occupier is dependent on the circumstances of the case. Conclusion As a general rule, occupiers of a particular premise are liable to entrants on their property who suffer an injury. The occupier may be held liable if it can be shown that the occupier owed the entrant a duty of care, failed to exercise that duty of care, and as a result of such failure, the entrant was injured. Some states separate the different types of entrants into classifications. In these states, the liability of the occupier to the entrant is often determined or restricted by the classification of the entrant.
Generally, the liability of the owner of the property to a trespasser is much less than the liability to an invitee or licensee. In some states, such as New York, the classifications of entrants have been removed, and the liability of property owners to entrants is assessed using the uniform standard of “reasonableness under the circumstances. ” In most jurisdictions the liability of property owners to trespassers is limited to instances wherein the owner had prior knowledge of the trespass but failed to adequately warn the trespasser, instances where something on the property posed an imminent danger to people and the owner failed to adequately warn any entrants and to instances involving children.
The liability to children is based on the attractive nuisance doctrine, because warnings that are meant to apprise adults often attract children. It is important to remember that the liability of the owner of a property to a trespasser is dependent on the circumstances on the case. Liability is determined by considering a culmination of factors including: nature of the injury sustained, nature of the trespass and the nature of the trespasser. SOURCES: 740 ILCS 130, The Premise Liability Act Occupiers’ Liability Act of 1984 Maldanado v. United States of America 893 F. 2d 897 (1990) Rowland v. Christian, 69 Cal. 2d 108 McCain v. Florida Power Corp. , 593 So. 2d 500, 503 (Fla. 1992) Jupin v. Kask, 849 N. E. 2d 829, 835 (Mass. 2006) hing v. La Chusa, 48 Cal. 3d 644, 667 (1989)