Can a Trespasser Sue for Injury?

People who own a home, business, or undeveloped land are expected to keep their property reasonably safe. The failure to do so can result in injury to visitors, and if the injury victim decides to sue, the property owner may have to pay out compensation.

But what if a trespasser enters a property without permission and sustains an injury? Would such a person have legal recourse against the property owner? 

Some might think the answer is always no—generally, someone who breaks the law forfeits their right to recover compensation. However, there are situations in which a trespasser can file an injury lawsuit, particularly if the premises were unsafe, not clearly marked at the time of their injury, or is an attractive nuisance. 

According to California Penal Code 602, trespassing is illegal. It is considered a misdemeanor offense. But there may still be a way for a trespasser to sue for injuries they sustain.

Specifically, the law reads:

Every person who willfully commits a trespass by entering upon lands or buildings owned by any other person without the license of the owner or legal occupant, where signs forbidding trespass are displayed, or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands is guilty of a misdemeanor. 

A trespasser, as defined above, is guilty of a misdemeanor and may not be able to file an injury lawsuit. However, the law makes an important distinction: the trespasser must willfully enter a property that is clearly private. If there are no signs forbidding trespass, or fences or other structures restricting access, the trespasser may claim that they entered the property on accident. In general, such a situation is unlikely to occur in the city or the suburbs, where houses, fences, and property boundaries are clear. If you live in a rural area and your home is on a large plot of land, property lines may be less obvious, in which case you may want erect signs to clearly establish the boundaries of your property. 

For example, if you live on a farm and someone walks onto the outskirts of your property and falls in a ditch, breaking a bone in the process, they may be able to sue even though they trespassed. Because the property was not marked with signs or fenced off, a court or jury may find the property owner at least partially liable for the injury. 

If the property is clearly marked, or a property owner gave express directions to someone not to enter the property, then it is unlikely a trespasser can sue for injuries they sustain. Keep in mind that this is not true of every case and you should discuss your situation with an experienced personal injury attorney.

In general, property owners owe trespassers a duty of care.

As with invited guests, anyone that enters a property is afforded reasonable safety. This is known as a duty of care. If there is a clear hazard on a property that is not clearly marked, and a trespasser injures themselves due to the hazard, a property owner may be found liable. Such hazards may include a ditch, trench, or anything that poses a danger.

Not only should an owner clearly mark the boundaries of their property, one should also use signs to warn of dangers on the property or fence off the dangers. Taking these steps can help a property owner avoid liability should someone trespass and sustain an injury. 

What if the property owner did not know a trespasser was on their property? There are actually two types of trespassers—if you contact a personal injury attorney or a case against you moves forward, you may hear these terms. 

Discovered Trespasser: A discovered trespasser is a person who enters a property without an express or implied invitation, but whose presence is known to the property owner.

Undiscovered Trespasser: An undiscovered trespasser is a person who enters a property without an express or implied invitation and whose presence is not known to the property owner. 

Generally speaking, property owners owe both discovered and undiscovered trespassers a duty of care. This is why maintaining the general safety of one’s property, and clearly marking the property line and any hazards with signs, fences, etc. is so important. In particular, an owner that fails to secure their property may be liable for injuries to children under the attractive nuisance doctrine. This doctrine is intended to protect trespassing minors who may not appreciate the risk of an object but nonetheless have access to it.

Property owners that use signs, fences, and other markers to ensure the security of the property may satisfy the duty of care owed to any individual entering their property, protecting them from liability.  

Trespassing is illegal, and while a trespasser sustaining an injury is uncommon, it does happen. You may want to contact a personal injury lawyer if you are injured on a property or a personal injury defense lawyer if you are arrested! An experienced attorney can help you make sense of your situation and determine the best steps to take if someone is injured on a private property.

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