The elements of trespasser premises liability claims: how to still win ...

It's understandably a tough hill to climb to ask a court to hold that a trespasser on someone's property deserves some kind of protection from the landowner. After all, the person on the property literally doesn't belong there, and it seems absurd for a landowner to anticipate whoever coming onto their land, where they would go, and what they would do in order to make sure the grounds are safe beforehand. Nonetheless, for well over 100 years, courts the country over have had some ground rules. Trespassers may not be legally on property, but that doesn't make them inhuman. Below, we discuss the main elements of how---in the rarest of cases---a trespasser may sue a landowner.

But before we start, it's worth pointing out that in most premises liability cases, it's not the injured person claiming trespasser status. Typically, the plaintiff will allege that they were on the person's property with some kind of permission or exception to needing permission. Therefore, assuming you cannot qualify for invitee or licensee status, you're left with trespasser status and its lower protections.

It's important to have the general background of premises liability down, regardless of how the law classifies you. Be sure to check out our Guide to Premises Liability page now. After we explain the main elements, we'll discuss some wrinkles to what is and is not a trespasser, especially as it concerns children.

Proving each element of a premises liability claim for a trespasser

A plaintiff must provide evidence for each step listed below in order to succeed in court. Remember, if one element is absent, then the whole case falls apart.

• The plaintiff was not on the premises with permission: That's what a trespasser actually is---somewhere on a person's property without the owner's consent. However, you don't need explicit permission to not be a trespasser. For example, if your neighbor always let you cross his field to get to your house, then you don't need "permission" every time.
• The defendant was in full legal control over the property: Who owns the property is not as important as who has legal authority to actually run the property. A leased home, while not owned by the inhabitants, is in "possession" for all of our purposes here.
• A condition on the property was unreasonably risky: The degree of risk must be something beyond something you'd normally encounter.
• The defendant behaved in a "willful, wanton or grossly negligent" manner: Here's where things get a lot more difficult. Normal negligence is essentially carelessness. The standard here has to be something that shocks the conscience or shows a plain disregard for human life. To put this in contrast, drunk driving is almost never considered gross negligence---and we all know how deadly drunk driving can be.
• The defendant's actions caused your injuries: Unlike in typical cases, this is usually pretty obvious, but your attorney still needs to draw the line between the bad act and your injury

There are few cases that successfully win in court. Often they have involved property owners setting traps like bombs, bear traps, or spring guns purely designed to kill or severely maim humans.

The exceptions to trespass elements

In order to circumvent the above strict elements, you'll need a lawyer who can find a way to get your case into an "exception." Here are a few:

1. Children. In some cases, kids who wander onto someone's property may qualify for what can be termed the "attractive nuisance" exception. Generally, parents should keep an eye on their kids and are responsible for their safety. However, when property owners do not secure areas that would naturally draw in minors, then they face owing the child and their parents compensation. Among the most popular recognized items that can qualify are: pools, trampolines, spas, skate ramps, and "slip-and-slides."

2. Tolerated trespassers, trespassers with an emergency, and volunteer rescuers. If your neighbor allows you to repeatedly travel around and in his land, you may qualify as a licensee. Further, trespassers with a legitimate emergency who come onto property seeking help or fleeing trouble are owed the same bare minimum duties as though they were social guests. Lastly, if someone or something on your property reasonably appears to need help, then the rescuer is afforded invitee status.

Regardless of your status, you need to talk with an experienced attorney who can explain your options. Don't let a property owner get away with causing you or a loved one harm. Call the experienced premises liability lawyers at Grossman Law Offices today for a confidential, free consultation. We're not here to judge you---we're here to help.