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Putting Premises Liability into the Mix: Trespassing

Posted on 01/10/19 by Malloy Law Offices in Premises Liability

January 10, 2018

Trespassing Definition


A trespasser is somebody whose presence is explicitly not permitted, but who got in anyways–so there are very little duties owed to the trespasser by the property owner. A trespasser has even less protection than a licensee, because if a trespasser arrives, he is not really there for any benefit of the owner of the premises.

The main duty owned by the property owner to a trespasser is to not intentionally hurt them. So somebody cannot lay out traps, essentially, for them. But at the same time, you don’t have a duty to make sure that the premises are safe, especially if it’s a non-public area.

When an Invitee Becomes a Trespasser


At some point that can be complicated, because somebody who is an invitee, who is in a store for purposes of buying products ends up in an employee-only area. Does that person become a trespasser?

No, because many factors need to be looked into to determine whether one is a trespasser, such as:

  • Did anyone know the supposed trespasser was going into an employee-only section?
  • Were there warnings there?
  • How visible were the warnings?
  • How easy it is to be confused?

These are all fact-sensitive knowledge that need to be considered.

Non-Public Areas


Just because somebody is in the area which is not generally open to the public does not make them a trespasser. We need to look at a variety of circumstances to determine whether they are a trespasser or if the store failed to adequately close off a non-public area, which in itself can be negligence.

If there is an area which is unsafe, and should not be accessed by the invitees because it is unsafe, and the proprietor knows that it’s unsafe, it’s really on the proprietor to make sure that the visitors, the invitees, know about it and make it known to avoid entering. And if the warnings are insufficient, then they’re not trespassers–they’re still invitees and they have a duty to make a safe environment exist.

The main duty owned by the property owner to a trespasser is to not intentionally hurt them. So somebody cannot lay out traps, essentially, for them. But at the same time, you don’t have a duty to make sure that the premises are safe, especially if it’s a non-public area.

Employee-Only Areas


At some point that can be complicated, because somebody who is an invitee, who is in a store for purposes of buying products ends up in an employee-only area.

Does that person become a trespasser?

No, because many factors need to be looked into to determine whether one is a trespasser. Did anyone know the supposed trespasser was going into an employee-only section? Were there warnings there? How visible were the warnings? How easy it is to be confused?

Just because somebody is in the area that is not generally open to the public does not make them a trespasser. We need to look at a variety of circumstances to determine whether they are a trespasser or if the store failed to adequately close off a non-public area–which in itself can be negligence. If there is an area which is unsafe, and should not be accessed by the invitees because it is unsafe, and the proprietor knows that it’s unsafe, it’s really on the proprietor to make sure that the visitors, the invitees, know about it and make it known to avoid entering. And if the warnings are insufficient, then they’re not trespassers–they’re still invitees and they have a duty to make a safe environment exist.

Dangerous Conditional


Now in Maryland, Virginia and D.C., even for an invitee, it’s a high bar to prove liability as far as a dangerous conditional. This is because there are two ways the property owner is liable for a dangerous condition.

The first circumstance is if a dangerous condition was created by the premises owner or premises occupier. Let’s say an employee was stocking the shelf with produce, dropped a bunch of produce on the floor, and then somebody slipped and fell on it. That’s on the store, as they’re liable for that type of circumstance and because it’s a dangerous condition which was created by a store employee.