Trespass - Duty To Trespassers

A homeowner is limited in what he can do to protect his family and property from trespassers. The homeowner cannot shoot children who keep cutting across the lawn or set traps or deadly spring-operated guns to kill anyone who trespasses on the property. DEADLY FORCE in any manner is generally not justifiable except in SELF-DEFENSE while preventing a violent felony. Mere trespass is not a felony.

The owner or person in possession of real property can be held liable if guests are injured on the property because of the owner's NEGLIGENCE. A property owner generally does not have the same duty to make the premises safe for a trespasser, however. A trespasser assumes the risk of being injured by an unguarded excavation, a fence accidentally electrified by a falling wire, or a broken stair. The occupant of real property has a duty only to refrain from intentionally injuring a trespasser on the premises.

These general rules have several exceptions, however. A property owner who knows that people frequently trespass at a particular place on his land must act affirmatively to keep them out or exercise care to prevent their injury. If the trespasser is a child, most states require an occupant of land to be more careful because a child cannot always be expected to understand and appreciate dangers. Therefore, if the property owner has a swimming pool, the law would classify this as an attractive nuisance that could be expected to cause harm to a child. The property owner must take reasonable precautions to prevent a trespassing child from harm. In this case the erection of a fence around the swimming pool would likely shield the property owner from liability if a child trespassed and drowned in the pool.