The owner/tenant intentionally injured the trespasser,
The owner/tenant was aware the trespasser was on the premises and was facing danger, or
The trespasser was a child and was endangered by an artificial condition on the property
Like it sounds, “trespasser” refers to people who go upon others’ land without the consent of the landowner or tenant. Examples include burglars or people who have been banned from entering the premises.
1. The owner/tenant intentionally injured the trespasser
Landowners and tenants may not deliberately harm trespassers simply because they are trespassing. If they do willfully harm trespassers, they may be liable for their injuries.
Therefore, landowners and tenants are advised to request that trespassers leave and to contact law enforcement if they do not comply. However, landowners and occupants can lawfully injure trespassers in the following situation:
When a person trespasses into an occupied dwelling or vehicle, the “Castle Doctrine” allows the occupant to employ deadly force when the trespasser is carrying out a felony (ex. home invasion). Read more in our article about Nevada self-defense laws.
2. The owner/tenant was aware the trespasser was on the premises and facing danger
If a landowner or tenant learns that a trespasser is on the premises and may be in danger, the landowner now bears a duty to exercise reasonable care to prevent injury. In short, a property owner or tenant may not passively permit a known trespasser to be harmed from on the premises if the injury is reasonably avoidable.
Nevada property owners and occupants can often meet this duty of reasonable care to trespassers by posting warning signs. These signs usually have to incorporate 50 square inches of fluorescent orange paint.
3. The trespasser was a child and was endangered by an artificial condition on the property
A property owner or occupant may be found legally responsible for a child trespasser’s injuries if all of the following conditions are met:
The child harmed him/herself on a man-made condition on the property (like a slide or a gazebo);
The property owner or occupant was aware the child was likely to trespass;
The landowner or tenant knew — or should have known — that a child could be hurt by the man-made condition;
The trespassing child does not appreciate the danger because of his/her youth;
The risk of harm to the trespassing child outweighs the burden of protecting against the danger; and
The landowner or occupant does not exercise reasonable care to protect against the danger to the trespassing child.
In other words, property owners and occupants are required to proactively prevent harm from foreseeable children trespassers against artificial dangerous conditions. There are often local laws that legislate various safeguards, such as installing gates around swimming pools.
NRS 41.515Limitations on liability; exceptions; “trespasser” defined.
1. Except as otherwise provided in this section, an owner of any estate or interest in any premises, or a lessee or an occupant of any premises, owes no duty of care to a trespasser and is not liable to a trespasser for physical harm caused by the failure to exercise reasonable care to put the premises in a condition that is reasonably safe for the entry or use by a trespasser or to carry on activities on the premises so as not to endanger a trespasser.
2. An owner, lessee or occupant of premises may be subject to liability for harm to a trespasser if:
(a) The owner, lessee or occupant willfully or wantonly causes harm to the trespasser;
(b) The owner, lessee or occupant fails to exercise reasonable care to prevent harm to the trespasser after discovering the trespasser’s presence in a place of danger on the premises; or
(c) The trespasser is a child who is injured by an artificial condition on the premises and:
(1) The place where the condition exists is one on which the owner, lessee or occupant knows or has reason to know that a child is likely to trespass;
(2) The condition is one that the owner, lessee or occupant knows or has reason to know and that the owner, lessee or occupant realizes or should realize involves an unreasonable risk of death or serious bodily harm to a trespassing child;
(3) The trespassing child, because of his or her youth, does 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 owner, lessee or occupant of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the trespassing child; and
(5) The owner, lessee or occupant fails to exercise reasonable care to eliminate the danger or to otherwise protect the trespassing child from harm.
3. This section does not affect any immunity from or defenses to civil liability established by specific statute or available at common law to which an owner, lessee or occupant may be entitled.
4. As used in this section, “trespasser” means any person who enters or remains upon any premises owned, leased or occupied by another person without the express or implied consent of the owner, lessee or occupant of the premises.
NRS 41.1393Discharge of duty to warn trespasser against dangerous condition. In any case where there is a duty to warn a trespasser against a dangerous condition of the premises, that duty is discharged by painting, at intervals of not more than 200 feet on each side of the premises, upon or near the boundary, a post, structure or natural object with not less than 50 square inches of fluorescent orange paint or, if the post is a metal fence post, painting the entire post with such paint.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.