Trespassers

Lots of trespassers on the MBE.  And as such there are some rules to know so that you can apply them to questions testing the many different angles that the writers of the test can choose to focus on in the questions.

In these questions the trespasser will be the plaintiff suing the landowner for damages resulting from harm caused to the trespasser. Step one is to determine whether the trespasser is discovered or undiscovered.  If the trespasser is undiscovered (or unanticipated), then the landowner has a duty to refrain from willful or wanton misconduct.  In other words, not much of a burden here on the landowner to prevent harm to those who are entering the landowner's land without consent from the landowner and without knowledge as to their entering. No amount of negligence will suffice.

On the other hand, there will be times when a landowner knows that trespassers have been on his/her land in the past and these trespassers are known as discovered trespassers.  The burden, though still rather slight, is increased here since the landowner has knowledge of the entrance.  If the landowner maintains an artificial (as opposed to natural) condition on the land and if that condition is unlikely to be noticed by a discovered trespasser (for example, if it's concealed), then the landowner must either make that condition safe or warn the trespassers of the condition but only if the condition involves a risk of death or serious bodily harm to the trespasser.  If the landowner carries on dangerous activities on the land, then the landowner should exercise reasonable care in the exercise of such activity.

Lastly, the rules change if the trespasser is a child.  A landowner should exercise ordinary care to avoid foreseeable risk of harm to children caused by dangerous conditions on the property.  Note that here a distinction is generally not made between artificial and natural conditions as it was above.  The landowner here may be liable if the plaintiff can show that there was a dangerous condition on the property that the landowner should have been aware of, the owner knew or should have known that children frequent the area, the condition on the land is likely to cause injury, and the expense of remedying the situation, on balance, would be reasonable when compared to the magnitude of the risk posed.  This specific rule as it relates to trespassing children is known as the attractive nuisance doctrine.