S3619-2013 Actions

• Feb 7, 2013: REFERRED TO JUDICIARY

S3619-2013 Memo

BILL NUMBER:S3619

TITLE OF BILL:  An act to amend the real property law, in relation to
the duty of land possessors to those who trespass

PURPOSE:  The purpose of this act is to prevent trespassers from being
elevated to the same legal status as non-trespassers in situations where
tort law previously treated trespassers differently out of respect for
the rights of property owners and sound public policy.

SUMMARY OF PROVISIONS:

Section 1 codifies the longstanding liability rule across the country
that a land possessor owes no duty of care to a trespasser except to
refrain from causing: harm to a trespasser by an intentional, unlawful,
willful, or wanton act

This rule is derived from the Restatement (Second) of Torts � 333
(1965), which the vast majority of states apply. It is also consistent
with New York common law prior to the state's adoption of a unitary
standard of reasonable care. See Beauchamp v. New York City Housing
Auth., 190 N.E.2d 412, 415 (N.Y. 1963) ("Under the common-law authori-
ties in this State an owner's only responsibility with respect to tres-
passers. intentional injuries.") (internal citation omitted).

A land possessor may continue to use justifiable force to repel a crimi-
nal trespasser as provided by New York's "Castle Doctrine" law, see N.Y.
Penal Law � 5 35.20-.25.

Subsection 2 codifies the commonly recognized exceptions in the Restate-
ment (Second) of Torts in which a land possessor may be subject to
liability for harm to a trespasser:

(1) A land possessor may be subject to liability to a child trespasser
injured by an artificial condition on the land that the child did not
appreciate but was known or should have been known to the land posses-
sor.

(2) A land possessor may be subject to liability to a trespasser injured
by an artificial condition on the land that the trespasser did not
appreciate but was known to the land possessor, and the harm occurred in
a limited area where the land possessor knew or should have known that
trespassers constantly intrude.

(3) A land possessor may be subject to liability to a trespasser if the
possessor discovered the trespasser on the land and failed to exercise
ordinary care for the trespasser's safety as to any artificial condi-
tions or dangerous activities being carried out on the land.

These exceptions to the general "no duty" to trespassers rule are found
in the Restatement (Second) of Torts �� 334-339 (1955). The overwhelming
majority of states apply some or all of these exceptions.

Subsection 3 provides a standard definition for the term "trespasser."

This definition is consistent with the longstanding definition provided
by the New York Court of Appeals. See Birch v. City of New York, 83 N.E.
51, 53 (N.Y. 1907) ("The owner or occupier of real property is under no
obligation to make it safe, or to keep it in any particular condition
for the benefit of trespassers, intruders, mere volunteers, or bare
licensees coming upon it without his invitation, express or implied.").

Subsection 4 clarifies that the legislation does not create or increase
the liability of any person or entity.

JUSTIFICATION:  In the overwhelming majority of states, a land possessor
owes no duty of care to a trespasser except in a few narrow and well-
circumscribed instances. New York is one of a minority of states that
holds a land possessor responsible for injuries to any reasonably fore-
seeable entrants on the land, including unwanted trespassers. This means
that a person who enters another's property without legal right or
permission, and sustains an injury, can sue the land possessor for that
injury. This legislation dials back such broad and open-ended liability
exposure by codifying traditional common law liability rules relating to
trespassers that exist in most other states.

LEGISLATIVE HISTORY: S.5091 of 2011-12

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: immediately.

S3619-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         3619
 2013-2014 Regular Sessions
 I N  SENATE
 February 7, 2013
 
 Introduced  by  Sen.  SEWARD -- read twice and ordered printed, and when
 printed to be committed to the Committee on Judiciary
 

AN ACT to amend the real property law, in relation to the duty  of  land
 possessors to those who trespass
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. The real property law is amended by adding a new article 11
 to read as follows:

 ARTICLE 11
 LAND POSSESSOR LIABILITY TO TRESPASSERS
 SECTION 350. LIABILITY OF LAND POSSESSOR TO TRESPASSER; EXCEPTIONS.
 

S 350.  LIABILITY OF LAND POSSESSOR TO TRESPASSER;  EXCEPTIONS.  1.  A
 POSSESSOR  OF LAND, INCLUDING AN OWNER, LESSEE, OR OTHER OCCUPANT, OR AN
 AGENT OF SUCH PERSON OR ENTITY, OWES NO DUTY OF  CARE  TO  A  TRESPASSER
 EXCEPT  TO  REFRAIN FROM HARMING THE TRESPASSER BY AN INTENTIONAL, WILL
 FUL, OR WANTON ACT. A LAND POSSESSOR MAY USE JUSTIFIABLE FORCE TO  REPEL
 A  CRIMINAL  TRESPASSER  AS  PROVIDED BY SECTIONS 35.20 AND 35.25 OF THE
 PENAL LAW.
 2. NOTWITHSTANDING SUBDIVISION ONE OF THIS  SECTION,  A  POSSESSOR  OF
 LAND MAY BE SUBJECT TO LIABILITY FOR PHYSICAL INJURY OR DEATH TO A TRES
 PASSER IF:

 (A)  THE PHYSICAL INJURY OR DEATH IS TO A CHILD TRESPASSER AND RESULTS
 FROM AN ARTIFICIAL CONDITION WHERE:

 (1) THE POSSESSOR KNEW OR HAD REASON TO KNOW THAT CHILDREN WERE LIKELY
 TO TRESPASS AT THE LOCATION OF THE CONDITION;
 (2) THE CONDITION IS ONE THE POSSESSOR KNEW OR REASONABLY SHOULD  HAVE
 KNOWN  INVOLVED  AN UNREASONABLE RISK OF DEATH OR SERIOUS BODILY HARM TO
 SUCH CHILDREN;
 (3) THE INJURED CHILD DID NOT DISCOVER THE CONDITION  OR  REALIZE  THE
 RISK  INVOLVED IN THE CONDITION OR COMING WITHIN THE AREA MADE DANGEROUS
 BY IT;
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04927-01-3
 
       S. 3619                             2
 (4) THE UTILITY TO THE POSSESSOR OF MAINTAINING THE CONDITION AND  THE
 BURDEN  OF  ELIMINATING THE DANGER WERE SLIGHT AS COMPARED WITH THE RISK
 TO THE CHILD INVOLVED; AND
 (5)  THE POSSESSOR FAILED TO EXERCISE REASONABLE CARE TO ELIMINATE THE
 DANGER OR OTHERWISE PROTECT THE INJURED CHILD;
 (B) THE POSSESSOR KNEW OR SHOULD HAVE KNOWN THAT TRESPASSERS CONSTANT
 LY INTRUDED UPON THE LIMITED AREA OF  THE  POSSESSOR'S  LAND  WHERE  THE
 TRESPASSER WAS HARMED, THE HARM RESULTED FROM AN ARTIFICIAL CONDITION ON
 THE LAND, AND:

 (1)  THE POSSESSOR CREATED OR MAINTAINED THE CONDITION THAT CAUSED THE
 INJURY;
 (2) THE POSSESSOR KNEW THAT THE CONDITION WAS LIKELY TO CAUSE DEATH OR
 SERIOUS BODILY HARM TO TRESPASSERS;
 (3) THE POSSESSOR KNEW OR SHOULD HAVE KNOWN THAT THE CONDITION WAS  OF
 SUCH A NATURE THAT TRESPASSERS WOULD NOT DISCOVER IT; AND
 (4) THE POSSESSOR FAILED TO EXERCISE ORDINARY CARE TO WARN TRESPASSERS
 OF THE CONDITION AND THE RISK INVOLVED; OR
 (C) THE POSSESSOR KNEW OF THE TRESPASSER'S PRESENCE AND:

 (1)  FAILED  TO CARRY ON A DANGEROUS ACTIVITY ON THE LAND WITH REASON
 ABLE CARE FOR THE TRESPASSER'S SAFETY;
 (2) FAILED TO EXERCISE REASONABLE CARE TO WARN THE TRESPASSER ABOUT AN
 ARTIFICIAL CONDITION MAINTAINED BY THE POSSESSOR THAT INVOLVED A RISK OF
 DEATH OR SERIOUS BODILY INJURY AND WAS OF SUCH A NATURE THAT THE POSSES
 SOR HAD REASON TO BELIEVE THE TRESPASSER WOULD NOT DISCOVER  THE  CONDI
 TION OR REALIZE THE RISK INVOLVED; OR
 (3)  (I) KNEW OR HAD REASON TO KNOW THAT THE TRESPASSER WAS IN DANGER
 OUS PROXIMITY TO A MOVING FORCE IN  THE  POSSESSOR'S  IMMEDIATE  CONTROL
 JUST BEFORE THE HARM OCCURRED; AND
 (II)  THE TRESPASSER WAS HARMED AS A RESULT OF THE POSSESSOR'S FAILURE
 TO EXERCISE REASONABLE CARE SO AS TO PREVENT THE FORCE FROM HARMING  THE
 TRESPASSER  OR  FAILED  TO EXERCISE REASONABLE CARE TO PROVIDE A WARNING
 THAT WAS REASONABLY ADEQUATE TO ALLOW THE TRESPASSER TO AVOID THE HARM.
 3. FOR THE PURPOSES OF THIS SECTION: (A) "TRESPASSER" MEANS  A  PERSON
 WHO  ENTERS ON THE PROPERTY OF ANOTHER WITHOUT PERMISSION AND WITHOUT AN
 INVITATION, EXPRESS OR IMPLIED; AND (B) "CHILD" MEANS A PERSON UNDER THE
 AGE OF EIGHTEEN YEARS.
 4. THIS SECTION DOES NOT CREATE  OR  INCREASE  THE  LIABILITY  OF  ANY
 PERSON OR ENTITY.
 

S 2. This act shall take effect immediately.

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