Relates to the liability of land owners to trespassers

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-.2.5.

Section 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.

Section 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.")

Section 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 well-circumscribed 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, S 3691/A4824 of 2013-14

Fiscal implications

None.

Effective date

Immediately.