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As long as it's not 'flagrant,' trespassing is OK? There ought to be a law

North Dakota lawmakers are expected soon to take up a bill to codify the traditional legal understanding of trespassing, preventing its reinterpretation through the courts that could make property owners subject to a new wave of ridiculous injury claims. The legislation merits action in state houses all across the country.

The bill is H.B. 1452, to clarify the liability for injuries suffered by trespassers, reflecting model legislation developed by the American Legislative Exchange Council (ALEC). The legislation addresses a problem that arose with the American Law Institute's Third Restatement of Torts, which changed the standard for the duty of care owed to a trespasser by an owner, occupier or lessee of private property.

As an ALEC fact sheet summarizes:

The common law in most states traditionally has held that these parties owe no duty of care to the trespasser, and thus cannot be held liable for personal injury claims. In many states, such as Texas, the duty of care owed to a trespasser is merely not to injure him "willfully, wantonly, or with gross negligence." There are a few commonly found exceptions. In most states, an owner can be held liable if a trespassing child is injured by an "attractive nuisance." Additionally, an owner can be liable for injuries to frequent or known trespassers caused by highly dangerous activities or artificial conditions.

However, the Third Restatement contradicts these principles and declares that an owner of property does owe a duty of care to a trespasser, unless that person is a so-called "flagrant" trespasser, a concept undefined by either existing common law in the states or in the Restatement itself. While the Restatement is not a binding source of law, it is widely used and accepted by the legal community. An article in TRIAL, the monthly publication of the trial bar, observed that this new standard of liability for trespassers is a "powerful new tool" for trial lawyers. Though a state's common law remains unchanged, legislators must take a proactive, preemptive approach to prevent attempts to exploit the Restatement. ALEC's model bill, The Trespasser Responsibility Act, aims to codify in binding statute what the common law in a state already holds, and in many cases has held for nearly a century, in order to clarify the inexplicable discrepancy in the Restatement and instill predictability to the system.

Mark Behrens of Shook, Hardy & Bacon has written a piece for the latest edition of the Inside ALEC publication that clearly assesses the threats posed by such an extra-legislative reinterpretation of trespass law:

Overall, the new Restatement's land possessor provisions are radical, would threaten to bring about fundamental changes that have little or no support in existing law, and would have a substantial adverse impact on land possessors, from the largest companies to the smallest individual homeowners, and their insurers. The Restatement could result in higher insurance premiums for homeowners and businesses.

UPDATE: Here's the Trial article from the American Association of Justice celebrating the Third Restatement, "The new restatement's top 10 tort tools."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.