Does a landowner or tenant owe a duty of care to someone that trespasses on their property? Most of us would say no, but a recent case in Dunklin County confirms that there are exceptions to that general rule.
John was riding an ATV on a public river levee. He continued his ride on trails that crossed back and forth between public and private property. Bill owned property adjacent to the public river levee and leased it to a tenant for farm purposes. The tenant erected a cable that stretched across the private road in order to prevent trespassing ATVs from tearing up their fields. Although John had ridden in the area many times, he had not seen this cable before and hit it at speed, causing serious injury. The tenant claimed there was white plastic on the cable making it easy to see from a distance but John disputed that.
John threatened to sue the property owner and the tenant on the basis of a 2005 Missouri Supreme Court case decided on similar facts. In the 2005 case, the tenant was also concerned about vehicles coming on to his field and cutting ruts. He first put up purple paint slashes at the entrance to the property to warn trespassers to stay out but people continued to trespass.
In order to provide a further deterrent, the tenant installed a 3/8-inch cable across the private road. A trespassing driver of an ATV was clothes-lined by the cable when driving on the private road, causing serious injury.
In the 2005 case, the Court held that an owner or tenant of land has a duty to warn even adult trespassers where the owner or tenant knows that persons constantly trespass on a limited area of land on which the owner or tenant maintains a dangerous artificial condition (such as a cable stretched across the road) that he knows the trespassers might not discover in time and which is likely to cause death or serious harm.
In the more recent case, a lawsuit was not actually filed. Instead, the insurance carriers for the landowner and the tenant agreed to pay $50,000 each to settle John’s claims rather than face a formal lawsuit.
Even trespassers are entitled to some limited protection while trespassing. If you know someone is trespassing on your land, you owe them a duty of reasonable care. Finally, you can be held liable if you create an artificial condition, such as a pond or lagoon, so close to a highway that it involves an unreasonable risk to children because of their tendency to deviate from the highway.
Doug R. Nickell is with Lathrop & Gage LLP in Springfield, Mo.
