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The Tolerated Trespasser: Why Ignoring A Trespassing Problem Can Be A Mistake

Generally speaking, when a grown adult trespasses onto your property and gets injured, you aren't liable for any damages. However, there are exceptions to that rule—and barring the gates and locking the doors isn't quite enough to keep you off the legal hook. This is what you should know.

You're expected to have concern for others on your property.

When you own property, you're expected to show a certain responsibility, known as a duty of care, toward people who come onto the property through invitation or license. That generally covers anybody who is there specifically at your request, like a house guest or a visitor, as well as people who are on the property for a purpose, like delivering the mail or dropping off a package. 

You can't really be expected to warn people of every possible danger, but you are expected to warn people of dangers that they can reasonably be expected to come near. For example, you would be expected to keep your steps free of clutter if you expect your guests to be going up and down them in order to go to the bathroom. Your delivery person has the right to expect you to keep the front steps in good repair—and warn him or her of the danger if they aren't.

That includes people you know aren't really supposed to be there.

You also have a responsibility toward anybody that you know is on the property once you realize that they are there—even if you didn't give them permission to be there.

If you realize that you have a dangerous area on the property—like a wooded area where you've laid out animal traps or an untended pool—you can reasonably assume that the trespasser you've seen sneaking over your back fence is going to come into contact with those dangers. That triggers your duty to warn him or her of that danger. 

If you don't, you can be held just as liable for an injury or death as if the trespasser were your personal guest. The same rule applies to trespassers who routinely come onto your land without your permission, once you're aware that they're doing so, even if you don't happen to catch them every time.

For example, that very issue is at the heart of a case playing out in Texas. A young man died after falling from a high platform at a day camp. The plaintiffs in the case allege that the camp knew that trespassers had easy access to the camp and had climbed the platform before. They allege that the camp's cargo net ladder could have been removed to prevent trespassers from accessing the platform so easily, had the camp been serious about keeping people away. By tolerating repeated trespassing, the camp made the young man a "tolerated trespasser," who was owed a duty of care similar to anyone who might be expected to be there.

In order to avoid a similar problem and end up the target of a personal injury lawsuit, make sure that you take active steps to stop any chronic trespassers. Once you've identified an access point, make sure that you try to block it off and post appropriate warnings of any dangers. In addition, contact the police and ask for assistance driving off the uninvited, so that you emphasize the unwelcome nature of these trespassers.  Contact a business, such as the Owen Law Firm for more information.