Inside Track: Trespasser liability: Wisconsin Legislature votes to codify existing law:

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    November
    11
    2011

    Trespasser liability: Wisconsin Legislature votes to codify existing law

    Joe Forward
    Legal Writer

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    A bill passed in both the Wisconsin Assembly and the Senate and awaiting Gov. Walker's consideration would preempt Wisconsin courts from adopting a unitary duty of care to trespassers. Currently, possessors of real property have no duty to trespassers, besides refraining from willful, wanton, or reckless conduct causing injury or death without justification.

    Trespasser liability: Wisconsin Legislature 
votes to codify 
existing lawNov. 16, 2011 – Legislation to codify existing case law as it relates to a property owner’s duty of care to trespassers recently passed both houses of the Wisconsin Legislature. The bill now goes to Gov. Scott Walker for his consideration.

    Under Senate Substitute Amendment 1 to SS SB 22, a possessor of real property “may not be found liable for an act or omission relating to a condition on his or her property that causes injury or death to a trespasser.”1 Introduced by Republicans, the bill won bi-partisan support. Neither the State Bar of Wisconsin nor any section of the State Bar took a position on the legislation.

    Under the bill, a “trespasser” is a “natural person who enters or remains upon property in possession of another without express or implied consent.”

    According to proponents of the bill, a codification of existing law is necessary to preempt Wisconsin courts from adopting a standard of care on par with the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 51) (tentative draft No. 6).

    Restatements of the Law are published by the American Law Institute – made up of approximately 4,000 lawyers, judges, and academics – as legal principles emerge and change over time. Restatements are not binding on state courts until adopted, but serve as guidance.

    The Third Restatement, still in draft form, currently adopts a “unitary duty of reasonable care” to all entrants on land, including trespassers, but not “flagrant trespassers.”

    The term “flagrant trespasser” is not defined but, in general, would likely include a trespasser who enters property and commits crimes like vandalism, theft or burglary. It would not include benign trespassers who may be unaware they are trespassing.

    Madison attorney Andrew Cook, testifying on behalf of the Wisconsin Civil Justice Council, told a Senate Committee the potential adoption of a unitary duty of reasonable care for trespassers would “particularly impact owners and renters of residential property, and could potentially be a big problem during hunting and snowmobiling seasons throughout Wisconsin.”

    “The new rules would also impose undue burdens on landowners, forcing them to take precautionary measures to deter trespassers from coming onto their land and protecting them from injury when they are unlawfully on the property,” Cook wrote in a memo to lawmakers.

    Ensuring application of current law

    It is well-settled law in Wisconsin that property owners owe a lesser duty of care to trespassers than to employees, guests, or invitees.2 In general, possessors of property owe a duty of reasonable care to those that enter the property with the property owner’s consent.3

    For trespassers, however, a property owner must simply refrain from willful, wanton, or reckless conduct that may cause injury or death to a trespasser.4 Injury or death caused by a failure to keep the property reasonably safe does not create a cause of action for trespassers.

    Senate Substitute Amendment 1 to SS SB 22 codifies this well-settled law. Under the bill, a possessor of real property – an owner, lessee, tenant, or other lawful occupant of real property – owes no duty of care to trespassers, but may be liable if he or she willfully, wantonly, or recklessly causes injury or death to a trespasser without justification.

    Interaction with other legislation

    Under the bill, willfully causing the injury or death of a trespasser will not result in civil tort liability if the possessor of real property acted for the purpose of self-defense, the defense of others, or for the protection of property under Wis. Stat. section 939.48.

    It’s important to note that the law of self-defense may also change under recent “castle doctrine” legislation, which passed both houses and awaits the governor’s consideration.

    That means a possessor of real property may soon be immune from civil liability (and not criminally liable) for intentionally killing or injuring a trespasser, if the possessor of real property reasonably believed the trespasser unlawfully and forcibly entered or was entering a “dwelling,” “vehicle,” or “place of business” while the possessor of real property was inside.

    Note also, under the new concealed carry law, a license-holder is considered a trespasser – and subject to a class B forfeiture – if he or she has proper notice from the residential, commercial, or other property owner or occupant that he or she may not enter or remain on the premises while carrying a concealed weapon.5

    Arguably, proper signage will convert the entrant status of an otherwise welcome guest, invitee, or licensee – to which a property owner owes a reasonable duty of care – into a trespasser, if carrying a concealed weapon against the property or business owner’s wishes.

    However, Senate Substitute Amendment 1 to SS SB 22 states: “This section does not create or increase any liability on the part of a possessor of real property for circumstances not specified under this section and does not affect any immunity from or defenses to liability available to a possessor of real property under common law or another statute.” Thus, carrying a concealed weapon would not specifically convert the status of the entrant to a trespasser under this bill. (Author's update: Please note that Dave McClurg, a labor and employment lawyer in Milwaukee, questions this conclusion. Please see his comment below.)

    Attractive nuisance doctrine

    The trespasser bill also codifies the “attractive nuisance doctrine,” meaning possessors of property may be liable for artificial conditions that attract and injure children, even if they are trespassing. Specifically, a possessor of real property may be liable for injury or death to a trespasser if the trespasser injured or killed is a child and all the following apply:

    • the possessor of real property maintained, or allowed to exist, an artificial condition on the property that was inherently dangerous to children;
    • the possessor of real property knew or should have known that children trespassed on the property;
    • the possessor of real property knew or should a have known that the artificial condition he or she maintained or allowed to exist was inherently dangerous to children and involved an unreasonable risk of serious bodily harm or death to children;
    • the injured or killed child, because of his or her youth or tender age, did not discover the condition or realize this risk involved in entering onto the property, or in playing in close proximity to the inherently dangerous artificial condition; and
    • the possessor of real property could have reasonably provided safeguards that would have obviated the inherent danger without interfering with the purpose for which the artificial condition was maintained or allowed to exist.

    These provisions ensure that people do not maintain dangerous elements on their property if children are nearby and are likely to be harmed by it. In addition, the bill would not create a duty of care for property owners who allow people to use their land for recreational activities, which is consistent with current law under Wis. Stat. section 895.52(7).

    In addition, the bill would not create a duty of care or ground of liability for property owners who allow people to use their land for recreational activities. The duty of care and liability with respect to recreational activities is governed by section 895.52.

    Conclusion

    Senate Substitute Amendment 1 to SS SB 22 does nothing more than place existing law relating to a duty of care to trespassers into the Wisconsin Statutes. This will, if signed by Gov. Walker, preempt Wisconsin courts from imposing a “unitary duty of reasonable care” in the future. However, lawyers should note that Wisconsin's pending “castle doctrine” bill may impact application of trespasser liability law. 

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    Related

    Endnotes

    1 Wisconsin Legislative Council Memo, Sept. 2011 Special Session Senate Bill 22, Substitute Amendment 1 (Nov. 1, 2011).

    2 Hofflander v. St. Catherine’s Hosp., Inc., 262 Wis.2d 539, 664 N.W.2d 545 (Wis. 2003).

    3 Id. at 575.

    4 Id.

    5 See Wis. Stat. section 943.13(1m)(c).