Are You Liable if a Trespasser Gets Hurt On Your Property?

Premises liability refers to the legal responsibility a property owner or manager holds when an individual gets injured on their property due to negligent maintenance or unsafe conditions. If you, as a visitor, slip and fall because of poorly lit public places or trip over uneven flooring, the owners may be liable for your injuries under the law. However, application of this varies according to the circumstances of the accident. What happens if you were trespassing? Are you still able to collect compensation? Our personal injury lawyers explain.

Liability Depends on The Category of Visitors

Liability varies depending on the status of the visitor, as each person falls into one of three categories:

Invitee: An invitee is someone given access to a property for mutual benefit. An example would include supermarket customers. Property owners and occupiers owe the highest duty of care to invitees. They must locate and fix hazards on the property, as well as warn visitors of the dangers.

Licensee: A licensee is not on the property for the commercial benefit of the property owner, rather they are there with permission, typically for social purposes. An example would be a dinner guest. Owners and property occupiers must use reasonable care when conducting activities on the property and warn guests of potential hazards. However, they are not required to actively search for dangerous conditions and fix them.

Trespasser: Trespassers are those who nefariously enter or stay on property without legal authorization from owners. The lowest duty of care is owed to trespassers. In most cases, property owners are only required to not willfully injure a trespasser.

However, there are some notable exceptions to this rule that must be considered.

Liability Toward Trespassers – Attractive Nuisance Exception

In South Carolina, there is a law that makes property owners liable to children and those with intellectual disabilities in some instances, even if they were trespassing. This is commonly referred to as the “attractive nuisance” doctrine.

If the property houses something likely to allure a child or person with an intellectual disability into trespassing—think pools or trampolines—the property owner is legally required to execute safety measures.

In these cases, if a child is injured – even if they are trespassing – their family may be able to file a personal injury claim and collect compensation for any injuries and losses.

“…a possessor of land is subject to liability for physical harm to children or a person with an intellectual disability who are trespassing thereon caused by an artificial condition upon the land if:

• (1) the place where the condition exists is one upon which the possessor knows or has reason to know that children or persons with an intellectual disability are likely to trespass;

• (2) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children or persons with an intellectual disability;

• (3) the person because of his youth or intellectual disability does not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;

• (4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children or the persons with an intellectual disability who are involved; and

• (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children or the persons with an intellectual disability…”

How a Lawyer Can Help

Even if your children were trespassing, a lawyer can play an instrumental role in establishing their rights and protecting them.

They can conduct thorough investigations to uncover details that might be pivotal for the case. For example, they may be able to gather video footage of the incident or prior property complaints showing that children commonly trespass in the area. This would enhance the strength of your case by showing that the property owner should have known to take precautions.

A Charleston premises liability attorney will also be able to evaluate the likelihood that your case would be successful. They can calculate your damages so you and your child can obtain the compensation you need to fully recover.

Finally, experienced premises liability lawyers are adept negotiators, and they can try to reach a settlement with the defendant and their legal counsel. This prevents the case from proceeding to trial, which allows for a quicker and less stressful resolution for everyone involved.

If you or your child has been injured on someone else’s property – even as a trespasser – we can help. Contact us today to schedule a free consultation.