Bill S3619-2013

Relates to the liability of land owners to trespassers

Relates to the liability of land owners, lessees and occupants to trespassers; provides liability in certain instances of injury to children.

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  • Jan 8, 2014: REFERRED TO JUDICIARY
  • Feb 7, 2013: REFERRED TO JUDICIARY

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 authorities in this State an owner's only responsibility with respect to trespassers. intentional injuries.") (internal citation omitted).

A land possessor may continue to use justifiable force to repel a criminal 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 Restatement (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 possessor.

(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 conditions 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 wellcircumscribed instances. New York is one of a minority of states that holds a land possessor responsible for injuries to any reasonably foreseeable 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.


Text

STATE OF NEW YORK ________________________________________________________________________ 3619 2013-2014 Regular Sessions IN 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;
(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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