Litigation Defenders

The Michigan House and Senate recently passed two bills that create the Trespass Liability Act.

The bills codify the liability of possessors of land for injuries to trespassers. Specifically, House Bill No. 5335 and Senate Bill No. 788 provide a possessor of real property owes no duty of care to a trespasser and is not liable to a trespasser for physical harm.  However, a possessor of real property may be subject to liability for physical injury or death to a trespasser if:

1. The possessor injured the trespasser by willful and wanton misconduct.

2. The possessor was aware of the trespasser's presence on the property, or in the exercise of ordinary care should have known of the trespasser's presence on the property, and failed to use ordinary care to prevent injury to the trespasser arising from active negligence.

3. The possessor knew, or from facts within the possessor's knowledge should have known, that trespassers constantly intrude on a limited area of the property and the trespasser was harmed as a result of the possessor's failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for the trespasser's safety.

4. The trespasser is a child injured by an artificial condition on the property and all of the following apply:

• The possessor knew or had reason to know that a child would be likely to trespass on the place where the condition existed.

• The possessor knew or had reason to know of the condition and realized or should have realized that the condition would involve an unreasonable risk of death or serious bodily harm to a child.

• The injured child, because of his or her youth, did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.

• The utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child. 

• The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.

The bill does not affect any immunity from or defenses to civil liability established by statutes or common law.  House Bill No. 5335 has been referred to the Committee of the Whole, and Senate Bill No. 788 has been referred to the Committee on Judiciary. 

It is anticipated that a version of the bills will be passed by the Michigan Legislature perhaps before summer adjournment, or in the alternative in the fall when the Legislature reconvenes.