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Duty to Trespassers in Massachusetts

Many people wonder whether they can be held liable for injuries sustained by trespasser who is injured on their land.

Suppose that a group of teenagers decided to skip class on a cold winter day and walk to a coffee shop three blocks away from their school to get a hot coffee. Instead of walking along the sidewalk like reasonable people, the teenagers decided to take a shortcut through the yards of several homeowners in the area. In so doing, they had to walk in the backyard of the property of a 92-year old woman, Mrs. Jones. After walking on Mrs. Jones’s property, Bob, one of the teenagers, slipped and fell on an icy patch on the ground. He twisted his ankle and eventually required surgery for complications to his ankle.

Mrs. Jones wants to know whether she owes a duty of care to Bob for his injury. If she does, she is concerned that Bob could sue her for his injury.

In personal injury law, in order for an injured party to prove his or her case for negligence, the plaintiff must show: (1) that the defendant owed a duty to the plaintiff; (2) the duty owed was breached by the defendant; (3) the breach was the actual and proximate cause of the injury; and (4) there were damages that the plaintiff suffered.

Generally in Massachusetts, the owner of land must exercise ordinary and reasonable care to those on the owner’s land. However, if someone enters upon a landowner’s land as a trespasser, there is usually no duty to warn of poor conditions on the land. There is also no duty to make poor conditions on the land safer for trespassers. In the application of these rules to the facts in the above example, because Bob was a trespasser, Mrs. Jones owed no duty to warn of the icy patch on her yard. As such, Mrs. Jones is not liable to Bob for his injuries.

Suppose, however, that Mrs. Jones created a beautiful art display made from recycled goods for public viewing on her front lawn. Mrs. Jones had received numerous national eco-art awards and accolades for her piece of art. To reach the display for viewing, a member of the public had to step on slabs of stone that were a part of the exhibit. The slabs were shaky. If a trespasser were injured on her land, would she be liable?

In Massachusetts, a landowner must remedy open and obvious dangers that the landowner created and maintained knowing that guests would encounter it. In this example, it is unclear whether Bob would be considered a welcomed guest or a trespasser. If Mrs. Jones knew that people would be on her property to view the art display, then Bob could potentially recover from her under the theories and principles of tort law because Mrs. Jones knew that people trespassed on her land and she did not take reasonable steps to mitigate any dangers.

Let’s look at another twist to the original example. Suppose Mrs. Jones knew that the student teenagers often trekked through her yard and were criminal “truants.” Massachusetts law requires that landlords employ a duty to care to guard against criminal acts of third parties. This means that Mrs. Jones might have to lock her fence or do what she could reasonably do to prevent the students from entering her yard.

Another issue regarding trespassers in Massachusetts deals with the child trespasser, specifically. Would Mrs. Jones be liable for a child trespasser who was attracted to her yard and was injured on her property?

In Massachusetts, a landowner must exercise care to avoid a reasonably foreseeable risk of harm to a child or children caused by dangerous conditions on the property. This extends to both natural and artificial conditions on her a landowner’s property. If, for example, a four-year old child saw a brightly colored sign or a pool or a broken treehouse and was injured on the property as a result of the child being drawn to the land, the landowner might be held liable for those injuries. The parent or guardian of the child would be required to prove that: (1) the dangerous condition on land should have been known; (2) the owner of the land knew that kids frequent the vicinity; (3) the condition is likely to cause injury; and (4) the expense of remedying is slight compared to the magnitude of risk.

If you are seeking a competent personal injury law lawyer or family law attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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