Journal: Harvard Law Review
Title of the Article: Duty to Seen Trespasser
Citation: (1913-1914) 27 Harvard Law
Review 463
Written by: Robert J. Peaslee.
1.0 INTRODUCTION
A person is said to be trespassing when he enters or
remains in a building or any other premises after the owner or an authorized
person personally made known an order to leave or forbade the entrance and he
knows that he is not legally right to be there. A person who enters the land or
uses the property with the permission of the property owner will not be a
trespasser. If someone reasonably believes they have permission to enter the
property in good faith will not be a trespasser. Innocence and being led to
believe you have permission are essential elements. In other words, there must
be a situation where any person must know or ought to know that he or she is a
trespasser.
The act of trespassing can either be happen in forms
of trespass to person or trespass to land or interference with goods. Trespass
to person is a situation where one’s personal space had been invaded through
actions such as assault, battery and illegal imprisonment. Trespass to land is
the action of entering someone else’s land without permission. On the other
hand, an interference with goods may be illustrates in such act like theft and
assuming ownership rights over someone’s things. Therefore, not only that the
act of trespass may be claim under the law of tort, it can also be claim for
criminal offence. As a result of the act of trespassing, one can either be
punished by being arrested, having to pay damages and legal costs, apart from a
few other kinds of punishments.
It must be noted that the act of trespass is
actionable per se which concludes that one can still be convicted even when the
action he took had brings no harm or loss. This can be seen in the case of Patel
and others v. WH Smith (Eziot) Ltd and another [1].
In this case, the court held that a landowner whose title was not an issue was
prima facie entitled to an injunction to restrain a trespass without taking
into account whether or not the trespass harmed him.
As the tittle of the article goes, the duty to seen
trespasser is basically a discussion on the liability holds by a landowner to
recover an intruder to his land, should the intruder suffers any injury as a
result of the landowner’s negligence. Through a civilian eye, such may not be a
question to ponder as the problem rooted from the intruder’s wrongdoing of
trespassing at the very first place. However, as the court take a deep
consideration on the justice of every party involved in such cases, it has also
taken into consideration on the welfare of the trespasser.
Before the discussion goes any further, it would be better
to define the word ‘injury’ itself as it plays an important role in this
discussion. According to Section 44 of the Malaysian
Penal Code, the word injury may be described as any harm which
illegally inflicted to any person, be it to his body, mind, reputation or
property.
This article mainly discussed the duty to seen
trespasser in through two views as it is facing the question such as the rule
of non-liability to unsuspected trespasser, the rule of ordinary care and the
doctrine of last clear chance under Massachusetts and Michigan Rule.
On the other hand, there are also two views that
answer whether the landowner shall take responsibility upon the harm inflicted
on the trespasser on his land. The first one agreed that he should be liable
for not ensuring the safety of his land that it had injured a trespasser. This
view called as the Michigan rule. The other one, known as the Massachusetts
rule, contradict the former one, as it stated that a landowner shall not be
held liable to recover the trespasser until it is proven that he had
intentionally done so. The opinion made through the Massachusetts rule is said
to be a more popular one compared to the one according to the Michigan rule.
But, even when that is the case, the Michigan rule should never be taken for
granted as the substance of it is still being applied in some courts. From
there, it is clear that the two views are opposites of each other. Therefore,
there should be a fine line to show to what extend which rule should applied to
avoid confusion and contradiction of court held which may hindered the process
of upholding justice.
2.0 SUMMARY
In responding to the question whether a known
trespasser has the right to recover for injuries that was negligently inflicted
upon him by the landowner, there are two opposite views on this matter. One
agreed that the seen trespasser do have the right to recover for his injuries
as the land owner is bound to exercise ordinary care towards the trespasser.
This view is known as the Michigan rule. While another rule, the Massachusetts
rule contradicts the former. In this rule, as long as there is no intention to
inflict injury on the trespasser, the land owner shall escape liability.
The rule of non-liability to unknown and unsuspected
trespassers for injuries inflicted upon them seems to be generally recognized
although there is no conclusive ground for that. A recovery is denied because
he has not been guilty of a breach of any duty owed to the plaintiff. The fact,
a landowner should exercise duty of care towards a known trespasser. However,
in the case where there is unknown but actually present trespasser, he is not
bound to exercise such duty. In such case, the element of knowledge plays an
important role as it may turn the table if the trespasser manages to prove his
lack of knowledge. As an addition to the discussion, it will be very much
helping to recall that one’s act and omission is said to be parallel to his or
her conscience. Therefore, ordinary care should be exercise all the time in
every circumstance. The issue on how much should the defendant shows his care
depends on the circumstances.
There are two views on the role of ordinary care
which is whether it is universally applied or there are situations where it
does not apply. It is only right to say that rule should be exercise in every
situation. This view is said to be irrelevant in the situation where the
trespasser is unknown. But, the presence of the unknown trespasser shall not
influence the conduct of the landowner. Conducts are influence by the knowledge
that one have or thinks that he have. Thus, one shall not be held liable over
the thing that he has no idea of its existence. However, in reality, a
landowner ought to take precautionary measures in case where the unexpected
event occurred. Therefore, a landowner should always predict what may happen in
his land to ensure the safety of everyone, including the unknown trespasser to
his land. Here, a question arises whether how much cautious should one be to
satisfy the theory of ‘looking ahead’.
The duty to use care is applied as according to the
amount of danger it may inflict. Where there is no possibility that one shall
be endangered, the duty shall be dismissed. This is because, there is no way
that one can put precautionary measures on what beyond his expectation. In the
light of the Massachusetts rule, the rule of duty of care is not universal.
Therefore, if accidents happen on the trespasser, both of the parties held can
be liable. Here, it can be help but to wonder on how a wrongdoer recovers from
his fellow wrongdoer. Logically, joint tortfeasor should not recover from each
other if both hold the same importance in committing the tort. But, in usual
way, that is not the case. In a joint offence, usually there will be a party
that plays the active role in causing the injury while the other is just a mere
cause to the injury.
Through the last clear chance doctrine, it says that
there must be a fine line drawn to show the limit to legal causation short of
the remote effects of a finished transaction. This is where the Massachusetts
rule is lacking. It is undeniable that trespassing is continuing wrong but, it
have to be prove that the trespass is of a higher degree than negligence in
order to avoid the application the rule of last clear chance.
At a first glance, the Michigan rule seems to par a
trespasser and those who rightly enters a land at the same level. Actually,
both are differentiate when a trespasser has to prove that even if he practices
the right conduct, it will not prevent the mishap from happening while such
conduct by the defendant is able to do so. In addition, the position of a
trespasser should be distinguished from an invitee because a landowner normally
will put prior precaution to protect his expected visitor rather than an
intruder. Thus, there is no doubt that the position of the plaintiff as an
intruder, in weighing his claim for recovery, should not be overlook. This puts
the trespasser in a lower standard compared to other rightful visitors. Hence,
a trespasser should prove that his unlawful presence to the land is a mere
causation to the defendant’s subsequent negligence, not an active one.
Since the position of a known trespasser and an
unknown trespasser is not parallel, one of them should be abort. A question to
ponder here is whether the position of a seen trespasser is the same as the one
not seen? Where the intruder is seen, it is the landowner shall not argue that
the trespasser presence is within his knowledge and therefore, he is
responsible towards him. In this case, no anticipation arises. However, if the
trespasser is not clearly seen, there will be much anticipation on the
trespasser because there is no certain information known about him. In this
case, if anticipation is the same as the fact, it will be an integral part of
the situation.
The
discrepancies in law usually happen in terms of degree rather and not kind.
Nowadays, there is no apparent distinction on the degree of liability of man
towards the result of his action, whether he should be taking a full
responsibility for all is action or it should only apply in certain cases. In
many cases, the Massachusetts rule is made more preferable to be put in force
rather than the Michigan rule. But, it is also true that many of the courts use
the substances in the Michigan rule as well.
When it comes to a practical application, many of
the cases from other states which declare an adherence to the form of the rule
deny its substance. Judge Cooley said that if defendant discovered the
negligence of the plaintiff in time, by the use of ordinary care to prevent the
injury, and he is justly chargeable with reckless injury, then cannot rely upon
the negligence of the plaintiff as a protection. In fact, negligence of the
plaintiff only put him in a position of danger, therefore only the remote cause
of the injury, while the subsequent intervening negligence of the defendant was
the proximate cause.
Meanwhile the Massachusetts rule is advocated
because it is practical. The proposition it stands for is easily understood and
readily applied by juries, while the Michigan rule involves reasoning too
subtle and distinctions too fine to be comprehended by those not expert in such
matters and led some to the conclusion that the rule is vague and uncertain. On
the other hand, it has been assumed in many cases that the phrase ‘intentional
injury’ was a very simple one, and hence a very desirable one to incorporate in
the law.
An act may be intentional in the sense that the
actor understands that he is performing it and wills to do so, yet wishes some
of its known consequences might be avoided. This time the state of mind
includes an element which was wanting in the earlier case. If this were the
element to which the Massachusetts rules refers there would be no liability
unless it was shown that the damage had been done because the defendant desired
to inflict injury. If the external phenomena, the manifest acts and omissions
are such as it requires, it is wholly indifferent to the internal phenomena of
conscience. A man may have as bad a heart as he chooses if his conduct is
within the rules.
What the law really forbids, and the only thing it
forbids, is action on the wrong side of the line whether that act blameworthy
or otherwise. The rule then should be stated not in terms of morality, but of
acts permitted or prohibited. The defendant must be judged by the surrounding
circumstances, including his own knowledge of them whether actual or imputed,
but excluding the desire which moves him to action. While some of the cases
seem to indicate that state of mind is the important thing, at the same time
they say that the state of mind can be shown only by inference from the
surrounding circumstances. All of which leads back to the proposition that the
test really applied is not state of mind but reasonableness of conduct. The
question is not what this man thought, but what ought he to have thought and if
this position is correct, it follows that mere intent to inflict injury is not
sufficient to create liability. It must be shown further that such intentional
interference with the person of the trespasser was unreasonable. If intent is
shown, the lesser and essential element of knowledge that certain consequences
will probably ensue is also shown. But this is the only importance to be attached
to the fact that the act was induced by an evil purpose.
Men must act reasonably in their present
circumstances. They must foresee as much as the average man. They are judged by
their acts, not by how they feel toward any person or thing. The standard is consistently
external. Given the surrounding facts, including of course the special
knowledge of the party, the only other material questions are, what did he do?
And, finally under the Massachusetts rule, was what he did reckless? The test
that rule seems to be found in the degree of danger to be apprehended from the
act. If the danger is considerable, and the average man would avoid it, there
is negligence in the ordinary sense. If the danger is very great, so that the
average man would understand not only that it was prudent but necessary to act
so as to avoid it, then the act is called reckless.
The standard of the average man is not to be used by
the jury in testing liability under this rule. That standard is available to
determine what the defendant ought to have known. It seems to be whether the
act that a reasonable man would have understood involved seriously and
unreasonably endangering life or limb. The test is the imminence of the danger.
Just what degree of danger is so great that invoking it may be termed wanton or
reckless conduct seems incapable of.
While it is said that the fault must be something
greater than the gross negligence, yet the fact remains that it may consist of
inadvertence. It is the failure to come up to the standard of conduct which has
been set. ‘Reckless negligence’ is only the failure to use the care the law
requires under the circumstances. To say to a jury that the defendant must have
used the care the law required under the circumstances, and the average man
would have used in the same situation. The rule says, firstly the injury must
be intentional, and then the defendant's intention is not an essential element.
The wrong may consist of negligence, but it must be greater than gross
negligence. Nothing but confusion can result from the attempt to explain these
propositions to a jury. Either it should be held that the intent is material
and must be proved, or else the rule should be abandoned.
The abandonment of the rule would not affect results
as largely as might at first seem probable. In many of the cases where the rule
and its application to the evidence in hand have been discussed, it would seem
that the same result would have been reached if the court had applied the
general rule of ordinary care under the circumstances. The trend of the
argument in these cases is toward the conclusion that there was nothing in the
conduct complained of which was other than that of the ordinary man having the
same situation to deal with. Applying to the evidence the strict rule obtaining
in these jurisdictions as to what amounts to proof of negligence, the
conclusion would be reached that there was no failure to use ordinary care
under the circumstances. A distinction has sometimes been thought to lie in the
proposition that under the Massachusetts rule there was liability only for
intentional wrong, and that there could be no intent when there was no
knowledge, actual or imputed. But it appears that this so-called intent is not
a state of mind actually existing but merely a part of a rule forbidding acts
under certain circumstances. Like the rule of ordinary care, it is an external
standard.
3.0
ISSUES
There are a few issues
discussed in this article. The main issue arises is that whether a trespasser
has the right to recover for the injuries inflicted onto him as a result of the
negligence from the part of the landowner. The second issue is that whether the
absence of the element of intention to bring harm to the trespasser can free
the landowner from such liability. The third issue is whether or not the
principle of duty of care is universal in nature. The next one is whether the
landowner’s knowledge on the existence of a trespasser in his land may hold him
liable towards the intruder. The last one is the issue of the position of a
seen trespasser compared the one not seen, whether they are being regard of
having the same position.
4.0
ANALYSIS
Under this article, the author has underlined few
principles in the duty to seen trespasser under Michigan Rule and Massachusetts
Rule. There has been few issues arise and one of them is whether a known
trespasser has the right to recover for injuries that was negligently inflicted
upon him by the landowner. Under Michigan Rule, the seen trespasser do have the
right to recover for his injuries as the landowner is bound to exercise
ordinary care towards the trespasser.
Meanwhile under Massachusetts Rule, as long as there is no intention to
inflict injury on the trespasser, the landowner shall escape liability. These
two principles are both opposite. In my opinion, when it comes to duty of care
of the landowner, surely the landowner should have liability over the
trespasser if only, reasonable man would not have known that anyone might
trespassed to landowner’s land without intention. However, I am also in an
opinion that under Massachusetts Rule, as long as there is no intention for the
landowner to inflict injury on the trespasser, the landowner shall escape
liability. In this case, the objective test must be applied whether reasonable
person would have known that someone might accidentally trespassed in his land
or not and if that is the case, it will seem that the state of mind of both
parties is essential in deciding liabilities. These two rules are somehow
confusing but both are reasonable to be a just principle. However, I am rooted
with Massachusetts Rule that landowner shall have no liability over the trespasser
as long as there is no intention to inflict injury. Since it is the
trespasser’s own fault for trespassing into someone else’s land, then it would
be unjust for the landowner to be held liable.
It must be noted that the tort of trespass is an intentional
tort, meaning that the presence of intention to commit such act is a must in
order to prove that there has been an act of trespassing. This can be seen in
the case of Letang v Cooper[2],
where the court held that the defendant’s act must be accompanied by the
intention to do so and carelessness will be constitutes as negligence and not
trespass. The act of trespassing can either be happen in forms of trespass to
person or trespass to land or interference with goods. Since tort of trespass
is actionable per se, one can be held guilty of trespassing even when his act
does had neither results to any injury nor loss.
There is also an issue related to duty of care
whether it is essential and should be applied to the plaintiff. It has been
stated that under the principle of Massachusetts Rule, the rule of duty of care
is not universal. Therefore if accidents happen on the trespasser, both of the
parties would be held liable. Meanwhile under Michigan Rule, the rule of duty
of care is applied according to the amount of danger it may inflict. Under
these both views, I am in opinion that Michigan Rule is more reasonable to be
applied. Since even though one should have taken care of his land and ensure
that his land may not inflict injury to anyone, even a trespasser, but the
degree of dangerousness should be fundamental. If any reasonable person would
have known any intruder would get hurt when trespassing onto his land, but the
injury would not be serious so the duty of care should not arise here and the landowner
should escape liability. However, the degree of seriousness would depend on
circumstances of each cases and it is for the court to decide. But, at the same
time the trespasser must also prove that his unlawful presence to the land is a
mere causation to the defendant’s subsequent negligence, not an active one. If
not, that would be the trespasser’s own fault for trespassing.
On the other hand, the author also has written down
the importance of knowledge in case of trespass. It is under the rationale that
one shall not be held liable over the thing that he has no idea of its
existence. However, ought to have known or to take precautionary measures in
case where the unexpected event occurred. There is also an issue arises on how
much cautious a person should be to satisfy the theory of ‘looking ahead’ or
called imputed knowledge which is someone ought to have known the outcome of
his act. Besides, duty to use care would depend on amount of danger it may
inflict since there is no way that a person can put precautionary measures on
what beyond his expectation. Judge Cooley once said that if the defendant had only
realize that the plaintiff already apply ordinary care to prevent the injury
before he commits the act of trespassing, the defendant cannot rely upon the
negligence of the plaintiff as a protection. In fact, negligence of the
plaintiff only put him in a position of danger, therefore only the remote cause
of the injury while the subsequent intervening negligence of the defendant was
the proximate cause.
There is also an issue arise on whether the position
of a seen trespasser is the same as the one not seen. It has been stated that
when the intruder is seen, the landowner shall not argue that the trespasser
presence is within his knowledge and therefore he is responsible towards him.
In this case, no anticipation arises. However if the trespasser is not clearly
seen, there will be much anticipation on the trespasser because there is no
certain information about him. Over time, owners have found really visual
manifestations to prevent trespassers from entering their properties. Some will
have a small placard with the words ‘Private’ or ‘No Trespassing’. Some will go
a bit further claiming that ‘Trespassers will be prosecuted’. So when someone
is clearly seen being trespassed, he could have been charged with liability to
pay for damages to the land owner even though he has not make any damage to the
land or property on the land since the tort of trespass is an actionable per se[3].
5.0 COMMENTS
Premises liability relates to a landowner’s
liability and responsibility for injuries suffered by persons who are present
on the premises. The duty of care owed by a landowner varies depending on the
visitor’s status, which may be that of invitee which is generally someone who
comes onto the land for a purpose that benefits the landowner, either by
invitation or permission but not necessarily for a business purpose, or
trespasser. In United Kingdom, which is under common law, 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 held liable for
injury or death of a trespasser if the possessor injured the trespasser by willful
and wanton misconduct or 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[4].
Meaning that, as long as the landowner have knowledge and intention to inflict
injury or should have known it would inflict serious injury to the trespasser,
so duty of care would apply and the landowner would be liable. In referring to
the case of Dania Daji (1868) 5 B HC 59, the accused placed poison in his toddy
pots, with the intention of
detecting an unknown thief who was in the habit of stealing his toddy. Such act
was done with the knowledge that if it was to be consumed by human being, it would
cause injury but. The toddy was drunk by a soldier who purchased it from
unknown vendor, causing injury to him. The court held that the accused was convicted
for causing injury by poison.
It must be noted that, in case of trespassing,
mental state of the defendant is prerequisite. The landowner may charge
defendant whether under civil or criminal case. A criminal trespassing charge
will only apply if there is intent or knowledge that the property is private
before entering. Meanwhile, if the trespasser suffers grievous hurt or death
upon entering the landowner’s land, duty of care might be applicable. Duty of
care such as ‘no trespassing’ signs post, and also any other notification to
prevent anyone from trespassing the land would be enough as long as reasonable
person would notice it.
6.0 CONCLUSION
In this article, it has underlined that there are
few important elements in charging someone under trespass or whether the
landowner liable for any injury inflicted upon the trespasser are intention,
knowledge, and also duty of care. Since the tort of trespass is actionable per
so, so no loss to property or damage should be prove. If the trespasser knew
that he was entering private property without permission, the penalties will be
more severe[5].
However, if the trespasser just wandered onto the property without knowing that
he was on someone else’s land, and then the case may be dropped.
7.0 REFERENCES
Flavia,
R. (2014). Common Sense Trespassing on Knowledge Territory.
Retrieved on 6th November 2014 from https://www.linkedin.com/today/post/article/20140814161129-130741761-common-sense-trespassing-on-knowledge-territory
Norchaya Talib. (2010). Law of Torts in Malaysia-3rd
Edition. Selangor: Sweet &
Maxwell
Asia.
Penal Code (Act
574). (2013).
Steven, L. O.
(2014). Tenants, Trespassers and
Squatters – New Michigan Laws Impact
Landowners’s Rights Regarding Those on, or with a
Possessory Interest in, Their Property.
Retrieved on 6th December 2014 from http://www.fosterswift.com/publications-Tenants-Trespassers-Squatters-Michigan-Landowner-Rights-Possessory-Interest-Property.html
Trespass to Land. Law Teacher; the Law Essay Professionals.
Retrieved
on 6th November 2014 from http://www.lawteacher.net/tort-law/lecture-notes/trespass-to-land.php
[1] (1987) 2 All ER 569
[2] (1964) 2 All ER 929
[3] According to Common Sense
Trespassing on Knowledge Territory (2014). Flavia Richardson. Retrieved on 6th
November 2014 from https://www.linkedin.com/today/post/article/20140814161129-130741761-common-sense-trespassing-on-knowledge-territory
[4] According to Trespass to Land. Law Teacher; the Law Essay
Professionals. Retrieved on 6th November 2014 from http://www.lawteacher.net/tort-law/lecture-notes/trespass-to-land.php
[5] According to Tenants, Trespassers and Squatters – New Michigan Laws
Impact Landowners’s Rights Regarding Those on, or with a Possessory Interest
in, Their Property (August 26, 2014). Steven L. Owen. Retrieved on 6th
December 2014 from http://www.fosterswift.com/publications-Tenants-Trespassers-Squatters-Michigan-Landowner-Rights-Possessory-Interest-Property.html
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