Trespassers on property have been subject to much debate on how they should be handled. There has always existed some tension between the public, law enforcement, and lawyers on this issue. The public wants more rights with regard to their property and the ability to use any force necessary to eject an unwanted intruder. Lawyers and the government, however, must acknowledge the balance between a civil society where even wrongdoers have rights, and the rights of people to protect and defend their property. In the resulting law, neither party is entirely happy, but with each case the maintenance of that delicate balance will continue.

Trespassing issues are a part of property law and as such, were part of the common law in American jurisprudence known as premises liability. Common law defines trespass as an interference of a landowner’s or occupier’s exclusive possession to land. Generally, no duty is owed to a trespasser with the exception of not intentionally creating a harmful or dangerous environment on the premises. In Illinois, a landowner or occupier has a duty of reasonable care when it is discovered that the trespasser is in a place of peril on the premises. In this instance, as with all other dangerous activities on property, a landowner has a duty to warn except in instances where the danger is open and obvious.

Landowners may have an ordinary duty of care when it is known that trespassers travel across the property on a regular and continuous basis, but the landowner must be aware of this activity happening in order for this duty to apply (i.e., a well-worn path across railroad property).

A recent case in Illinois has imposed additional duties on landowners to protect people from the negligent actions of third parties. In Marshall v. Burger King, the Illinois Supreme Court held that Burger King did not exercise enough care to prevent their customers from the risk of unreasonable harm by a third party. In this case, a customer was killed as a result of a car plowing through the restaurant. Whether this may change any duty for trespassers who injure third parties is unknown at this time.

Trespassers who enter onto land and become injured need to seek the advice of an attorney immediately. While there are particular rules in place, a case of trespass can depend on the circumstances surrounding the trespass and the facts of the situation. You will need to document anything concerning the situation, including any eyewitness accounts, any photographs of the condition of the property at the time of the incident, and the extent of the injuries alleged. An attorney will be able to construct a case and help you obtain any deserved compensation.

This article is for informational purposes only and is not to be construed as legal advice. Your case may be different. Consult an attorney in your area for further guidance. If you were injured on the property of another, please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.