Can You Be Held Liable for Trespassers?

Posted by & filed under Personal Injury.

In most situations, a trespasser who is injured on private property has very little recourse to seek compensation for their injury. The act of their trespassing tends to render them unable to bring suit for any harm they may have suffered. However, there are rare times when a trespasser may bring suit in South Carolina against a landowner on whose property they were harmed.

Wanton & Willful Injury

In 2015, South Carolina passed the Trespasser Responsibility Act (TRA), which essentially codifies the common law notion of what trespassing is and what liability is owed. It states that no landowner may be liable to a trespasser except in “unusual circumstances.” The question for many is what constitutes unusual circumstances. There are two broad categories under which a trespasser may still have grounds to sue a landlord.

The first is if the landlord has not refrained from ‘wanton and willful injury.’ The classic case dealing with this fact pattern is Katko v. Briney (1971), an Iowa case wherein a homeowner rigged a gun to fire when a door was opened, intended as a trap against burglars. Katko opened the door and was injured by the gun, and brought suit. The Iowa Supreme Court held that “the law [always places] a higher value on human safety” than on any property rights, ruling for Katko. At the time, Iowa observed the same common-law principles that South Carolina does, making the Katko case a good analogy for what constitutes ‘wanton and willful injury’ in the state.

Attractive Nuisance

The other broad category of cases in which a trespasser may still bring suit against a landowner if injured on their property is that of attractive nuisance, under which the trespasser is a child. The common-law doctrine of attractive nuisance still applies in South Carolina, and it holds that if a landowner has a construction on their property which may be attractive to children, they are bound to take “reasonable pains” to make it safe enough that children will not be harmed upon contact with it.

The TRA explicitly states that nothing in its lines should be construed as modifying the doctrine of attractive nuisance. This means that with regard to landowner liability to child trespassers, nothing has changed – it still exists if the child (or their next friend or guardian) can prove that an attractive nuisance existed and that they were drawn to the property because of it. Many cases fail not on duty grounds, but because the plaintiff is unable to prove that the construction in question was an attractive nuisance. It is not enough that a construction or feature attracts children – there must be a likelihood that it will attract more.

A Premises Liability Lawyer Can Help

If you have been injured while trespassing on someone else’s property, there may be little you can do, but there may be a way for you to get the compensation you need. Consulting a premises liability attorney can help clarify issues and put you on the right path. The dedicated North Charleston premises liability firm of Callihan & Syracuse is happy to help you work out your options. Contact us today at 843-790-3476 to set up a free consultation.