A Landowner's Duty to Adult Trespassers
by Roger T. Manwaring

If you know that trespassers consistently use a portion of property you own, but take no action to prevent them from doing so, you may be assuming a duty to keep you property safe for them or to warn of non-obvious dangers on the premises. Although as a landowner you normally would owe a trespasser only a duty not to act recklessly, acquiescing in continued trespass can convert the trespasser into a licensee lawfully on your property or increase your obligations to one who remains a trespasser. To avoid acquiring heightened obligations to those on your property without permission, you must take affirmative steps to prevent the continued trespass.  

1.   The minimal common law duty to trespassers:

Which of the following personal injury plaintiffs is more likely to recover damages: (1) An adult who scales a 10 foot, barbed wire fence, enters a closed factory through an unlocked window, and falls into an unmarked trap door or (2) another adult who while walking home from work takes a shortcut across a unlighted, privately owned corner parking lot, steps in a hidden hole? It may surprise you that the answer, probably, is neither. 

Under centuries-old Massachusetts common law, both are considered trespassers and cannot sue the property owners for negligent failure to maintain their properties in safe condition or warn of dangers. A Massachusetts landowner owes a licensee or invitee a duty of reasonable care (and can, therefore be sued for negligence which is the failure to exercise reasonable care), but owes an adult trespasser only a duty to refrain from willful, wanton, or reckless disregard for their safety.   

2.   Exceptions to the common law rule where the landowner acquiesces in continued trespass.

While it might seem appropriate to limit the factory owner’s duty to the trespasser who scaled the 10 foot fence, the trespasser who takes a shortcut across a parking lot is less culpable and should, arguably, be entitled to greater care on the part of the landowner. It is precisely because not all trespassers are created equal that the courts have fashioned exceptions to the draconian common law rule.

First, a landowner’s acquiescence may convert the trespasser into a lawful licensee, to whom the landowner owes a duty of ordinary care. According to the Massachusetts Appeals Court:
The precise dividing line between a trespasser and a nontrespasser for common law tort liability purposes has not been defined in Massachusetts .... Generally, whether one is a trespasser depends upon the consent of the owner. ... An owner’s passive acquiescence in continued use of his property by members of the public, absent any reasonably effective steps to discourage such use, might create in some individuals a reasonable belief that the owner consented to such use. In that situation, the user might not be a trespasser. (Emphasis added). 

For example, the Appeals Court has held that a child injured by a self propelled passenger railroad car was a licensee rather than a trespasser based on the railroad’s conduct and passive acquiescence in people crossing its tracks at a the location of the accident:  The evidence warranted a finding that the minor plaintiff was a licensee rather than a trespasser as contended by the defendant.... That the crossing appeared on B & M's maps, that it was marked with a crossing sign and laid with planks, the frequency of its use (in which the railroad may reasonably be seen to have, at the very least, passively acquiesced), and B & M's knowledge that the adjoining areas were often used all combine to warrant the conclusion that the plaintiff was more than a trespasser. (Emphasis added).

Similarly, the Massachusetts Superior Court held that there were disputed factual issues requiring a trial and, therefore, denied the defendant parking lot owner’s motion for summary judgment, based on the owner’s acquiescence in the continued use of the lot by members of the public as a short cut.  There is evidence that the parking lot was regularly used by not only Smith but numerous other members of the public as a short cut between two public ways in Waltham; that use of the property for these purposes had gone on for a long time; and that the Club-as well as the defendant personally-was well aware of the use. There is also evidence that while the Club had taken certain steps to discourage members of the public from using the parking lot, a way was open to cross over it virtually all the time, and the signs put up by the Club to discourage use were directed to persons whom might seek to park their cars in the parking lot, not persons on foot crossing over it. In the circumstances, there are material issues of fact in dispute about whether the presence of Smith and persons like him was passively accepted by the Boys Club, thereby taking him (and similarly situated persons) out of the category of trespasser. (Emphasis added, footnote references omitted). 

Second, even if the trespasser remains a trespasser, a landowner who knows of but fails to stop a trespasser’s consistent use of the premises may be liable for ordinary negligence if the trespasser is injured by a hidden, artificial condition on the property. The Superior Court explained:  Moreover, even if one assumes Smith was a trespasser at the time of the incident, the Restatement (Second) of Torts § 334 (1965), indicates that one in the position of the defendant who knows or should know that trespassers constantly “intrude” in a limited area (such as the parking lot) may be liable for bodily harm caused by the failure “to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.” Driving a motor vehicle may be considered an activity involving a risk of death or serious bodily harm. Again, in the factual circumstances suggested by the summary judgment record, a reasonable fact finder might conclude that when backing up his vehicle in the parking lot, the defendant owed a duty of reasonable care to an arguably known trespasser such as Smith.

While the superior court acknowledged that no Massachusetts case had yet adopted Restatement §334, it predicted that they would do so. While §334 concerns an “activity” carried on by the defendant in the area trespassed upon, §335 applies the same rule in situations where the danger to the trespasser is caused by an artificial condition on the property: § 335. Artificial Conditions Highly Dangerous To Constant Trespassers On Limited Area.

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if  (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Thus, the duty owed to a trespasser under §§334 and 335 is more limited than the duty which would be owed if the trespasser were a licensee or invitee lawfully on the premises. The duty is owed only when the owner knows of consistent trespass, the condition is artificial rather than a natural part of the land, the condition is highly dangerous and it is hidden. Under these circumstances, owner’s failure to warn the trespasser of the danger is actionable.

3.  Take action.

The clear message is that when you know trespassers are using you land, you should take action to prevent them from doing so. Making clear that entry on your land is not permitted will certainly prevent trespassers from acquiring licensee status. If, despite your efforts, trespassers continue to use a particular portion of your land, you should post signs indicating that trespass is prohibited and warning of any hidden, artificial conditions on your land which pose a significant danger to the trespassers. Doing so should satisfy any duty you owe them as trespassers.

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.