Injury while illegally trespassing on property -- your view on liability

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Alehldean brings up an interesting point:

It's one thing if the property owner is responsible for causing the damage and a completely different thing when he's being burdened with the risk.

I think the risk should always rest on the trespasser, sometimes even when invited (e.g. someone falls from your stairs -- it should be his own responsibility unless he proves the stairs were badly maintain and he couldn't tell, NOT your responsibility untill you prove everything was okay). Accidents should generally burden those to whom they happen (e.g. if you trip on a banana skin and smash someone's shop window, you shouldn't be responsible for the damage). But if you keep dangerous animals unrestrained and the guest isn't aware of the risk he incurs by entering your house or property when invited, it should be your responsibility.

Yeah, unless you gave them any reason to think they weren't illegally trespassing. A stranger taking a shortcut through your unfenced land is different from a burglar.

@Baronius:

Damn, pavements are a bit controversial. One is sure: if the law obliges the owner to clean those, he should. Keeping safe the pavement next to one's house is not the same as taking turns to sweep the floors in the townhall. Even if it isn't completely just and fair, it's sensible. If it weren't done by the house owner, it would have to be done by community service and it would be paid from property tax money, anyway.

On the other hand, house owners should never be required the impossible or burdened too much. At some point, they should receive help from the appropriate community services. It's hard to expect a person living alone and working two jobs to keep the pavement clean and salted (or "sanded") all the time. I think it would be much better to reduce the house owners' obligations and hire appropriate professional teams for property tax money. And they should always be around anyway, in case you'd rather hire someone than do it on your own. I'm a huge anti-fan of non-monetary public obligations. Professionals can do it faster, better and often cheaper, while you can use the time and effort in your own job where you're a professional.

[ June 25, 2006, 16:40: Message edited by: chevalier ]

 

I absolutely agree. In less developed countries, the budget is too small to support such activities everywhere (or at least in most places) where it would be required, unfortunately.

 

Yeah, that's a problem. But imagine everyone tries to hire a professional team with equipment to do his part of the pavement or road. What a loss of time, fuel and whatnot. It would be more economical to do whole streets at once. And it would be quite bothersome for individual citizens (property owners) to found and manage companies to do just that, while it wouldn't be too hard for the local authorities. Just a couple of calls and some paperwork and some property tax money. In this light, apart from those isolated small areas, it's not so reasonable to oblige house owners to do that on their own. The problem with small or isolated areas, however, is that those people are typically in big trouble when heavy snow falls, so they should receive some professional help rather than a burdensome public obligation.

 

Alright, how 'bout this... You've got a blind, half-cripple, ninety year old, senile, broke as 'ell, no friend havin', mentally retarded man. In other words, he has no possibility of cleaning his own walk (excuse me, the city's walk that happens to be in front of his house). Young strapping man comes carefully walking down the sidewalk and slips on the ice in front of the old man's house. Who's at fault? The old man for not doing, in his case, the impossible? The city for not insuring their property was taken care of? Or the young man for walking through an obviously dangerous area?

 

I reject the notion that someone should always be responsible if something bad happens (in fact, I hate that kind of reasoning and I think it's beneath a lawyer, or should be), and if it's an accident and no one is at fault, no one should be held responsible.

If the road is public and there's no explicit legal obligation of adjacent house owners to keep it clean etc instead of the local authorities (the mere fact that house owners are obliged doesn't automatically mean that local authorities aren't responsible), then the authorities should be responsible for some really outrageous cases of negligence. But not for someone just slipping on the ice, come on... Maybe if he broke a limb or something.

 

I think that if your sidewalk isn't actually your property, then you shouldn't be required to maintain it.....since you don't own it. In other words, if some guy slips on the city's icy sidewalk he should sue the city....not the owner of the house. Obviously this isn't the way the law usually works, but it's fairly clear that there are a million circumstances in which it will simply not be possible for a home owner to keep his sidewalk ice or snow free. The property could have no occupant and currently be on the market, or the owner could be travelling on business. Perhaps the owner was sent to Iraq to fight the war on terror and the landscaper he hired to maintain his yard died or went out of business. Perhaps the owner was hospitalized right before the ice storm started or (and this one happens a lot in my neck of the woods) maybe the owner is stranded somewhere else due to the afforementioned inclement weather (and therefore unable to shovel and salt his sidewalk). If the sidewalk in front of my house belongs to the city, then let the city take care of it.

 

Luckily in the suburbs where I live we have no such ordinance. Our sidewalks are typically buried under snow until spring. Although we do shovel out the fire hydrant so the firefighters don't have to do it.

As to illegallly trespassing, if the intent was to do harm (to property or person) , I have no sympathy if you are injured accidently or on purpose.

 

I said something like that during a criminal procedure lecture and the prof mentioned a kid stealing apples and getting shot from a rifle and I guess he was right it shouldn't be taken too absolutely. But generally I agree with the idea assailants shouldn't expect too much. Especially when they take on the person and not property, but even then. However, when people go all happy about saying they would defend property with lethal force, I think it's a tad bit much. If your jewels and money and whatnot are being carried out and you shoot in the leg and miss by chance... pity. But if it's something not so indispensable and people shoot to kill, it's wrong, I think. I generally believe you should be allowed to kill rather than expected to accept a beating, but people who shoot at children in the orchard should be locked. Either in prison or in psychward.

 

Yeah. Is that a feature of a highly developed country? Some people just can't fathom the idea of no one else being responsible. Extreme contract clauses (look at EULAs and other such), never letting anything happen without someone to blame, never agreeing with any injury or loss happening by accident, the accused being guilty until proven innocent in practice instead of the other way round... We have some of that here, too. Except people here don't sue near as much. Wonder if it's not a result of too many minority rights, affirmative actions, that kind of stuff, making people feel like victims. And it's uncool not to be a victim of something.

[ June 27, 2006, 14:03: Message edited by: chevalier ]

 

Since I don't have time, just a quick clarification:

I thought you implied it's secure to drive with tire chains even in the worst weather circumstances.
Serpentines are crooked, sinuous roads in the high mountains (I'm not a native Eng. speaker, this was a very quick definition, if not clear I'll try to rephrase it later.)

 

External Private Property (i.e. land):
If it's an injury caused by the inaction of the property owner (ie not fencing in a pond/pool, not repairing a wall or not locking up a dog) then no. I don't believe people should have to make changes just because someone "might" be trespassing and get hurt by it.
It's slightly more complicated if it is an injury caused by a specific action of the property owner. Booby traps would definitely be a sueable offense (and are in the UK) A physical attack by the owner
would have to be judged on a case by case basis depending on the trespassers motives (if they can be determined) and the actions taken. Shooting a boy for stealing apples is an obvious no-no although a smack on the bum shouldn't be classed as GBH. Hitting an adult with a cricket bat when they are in the process of stealing your car should be defense of property and not sueable.

Internal Property
No. With the exception being booby traps. If you have a non-illegal motive for being somewhere and there is someone on the premises you damn well talk to them. If something accidental happens it's your own fault for being somewhere you know you shouldn't be.

 

External property:
First off, the land has to be properly marked as private. I don't neccessarily think 6' fences are required, but private property signs on the trees or staked in the yard would be good. After that point, any injury caused by natural events/circumstances, such as a pond or ice, are the trespasser's liability. Any injury caused by the home-owner, directly or indirectly, must have sufficient warning attached. If you have bear traps in your lawn, have a sign that says 'beware of bear traps'. If you shoot at a kid fr stealing apples, you had better well warn him off with the gun visible first. If they ignore these warnings, its their fault. If there are none, it is yours.

Internal property:
Illegal entry: It's your own damn fault. If you fall through the sky-light and break your leg, its your fault for getting on a sky-light (this actually happened at a school near here).

Legal entry, but illegal actions (or illegal actions after illegal entry): The owner has every right to defend his/her property and self. If that means shooting a burgler, go for it. That doesn't mean shooting someone running out the front door empty handed, though. That's no longer an illegal act.

Legal entry, accident: case-by-case, but probably your fault. If you leave the iron on and it falls on someone, its your fault. If you spill water and don't clean it up and they slip, its your fault unless you warned them and even then it depends on the warning.

 

Things may be a little different in the states, but I was always taught to believe that land in Britain is assumed to be Private. In towns/cities public land is fairly obvious. In the countryside National parks and public rights of way (i.e. footpaths) are (almost in their entirity) clearly labelled. Although it is obviously possible to get lost, even with a map.

 

That is different in America, where there's a lot more open space. Also, late at night, when someone's drunk, they aren't neccessarily paying attention to what house they're about to smack into, but most won't climb a fence and red reflective signs at least show an attempt to get to them. I go for a reasonable balance of responsability here. The drunk should have known the risk before he got drunk, but the owner should at least make some attempt to warn them off.

But, yeah, in America, it is usually a good idea to mark private property if you want it to be at all private.

 

Just out of interest, who owns the open space? Is it "Public" because it is Governmental and they don't care?

 

I'm not a real estate attorney, so I'm not sure, but I think any property not owned by private people or businesses is property of the city/county/state or occassionally federal government. This land is assumed public unless specified otherwise. For example, no one needs to declare parks public, nor National Parks, nor empty woodlands. Private portions of governmental buildings, on the other hand, are marked with signs like 'authorized personel only beyond this point' and the like. The assumtion here is public unless otherwize marked or obvious(i.e. a house).

 

@Carcaroth

Someone always "owns" the land. Up until 1911, the federal government owned all unclaimed land, and gave it away for free. Basically, up until 1911, you could go west, stake a claim to any unclaimed land, and the government simply gave it to you free of charge. (Of course the expense to make a cross-country trip and move all of your stuff was on the individual.)

So technically, the land has always been owned by someone. Today, the only federally owned land that I'm aware of are military bases and national parks. The latter are public (and are in some cases quite large) while the former are not. There is also land owned at the state and local level as well.

 

Cheers Aldeth,

That is what my base assumption was. I'm guessing that you should be able to tell if you're in a national park or not from a standard map. If you're not in a national park, you're trespassing, regardless of whether someone has put signs up or not.

 

Not exactly. In my neighborhood, there are lots of trails around behind people's houses. It's only a 5-15 ft stretch of land, but its there. I think the city technically owns it, but it is open to the public. Yards are fenced in, though usually only by a 2-4 ft fence. There are also several small wooded areas, kind of like parks, but without anything developed in them. One is owned by the city and is called a park, the other is just empty. I have no clue who owns it or anything, but these are generally concidered to be as public as roads and side-walks are.