*The content of Faith Through Fear is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact an attorney.*
Does everybody have the same rights? Sometimes it seems like certain people or groups have more rights than another. We all have heard of habeas corpus, which protects us from unlawful detention. Due process protects individuals from the government, at the state level and the federal level. What about the rights of an offender versus the rights of a victim?
Did you know that as landowner you have a duty of care to all who are on your property? Some states classify users into three different groups: trespasser, licensee, and invitee. Without going into too much detail, a licensee or invitee is somebody that you are aware is using your property, whereas a trespasser is somebody who is using unbeknownst to you. Furthermore, trespassers are split into two groups: an unanticipated trespasser, and an anticipated trespasser. The group that receives the most protection is the invitee, then the licensee. An anticipated trespasser has more protection than an unanticipated trespasser, but the amazing thing is, that the unanticipated trespasser still has rights under the law.
According to a law firm's blog, "A landowner does not owe a duty to trespassers to keep the premises in a safe condition. Rather, the landowner owes only a minimal duty to avoid willfully or wantonly injuring the trespasser." They go on to say, "An anticipated trespasser is one who the landlord knows or has reason to anticipate would come onto the property. The landlord has a duty to protect anticipated trespassers from dangerous activities or hidden perils on the premises." With the way that is worded, willful could be defined by any number of actions. Also, another firm mentions that some states have gotten away from the classification of entrants and that, "some have adopted a rule that provides that an owner or occupier of land has a duty of reasonable care under all circumstances, and the status of the entrant is merely a relevant factor in determining whether the injury was foreseeable and the landowner negligent." This firm further stipulates between discovered and undiscovered trespassers, "If a property owner discovers a trespasser on the property, he or she has a duty to use ordinary care to warn the trespasser or, to make safe, artificial conditions that the property owner knows involve a risk of death or serious bodily injury that the trespasser is not likely to discover," and goes on to say that a landowner owes no duty to undiscovered trespassers.
I'm sure many of you have heard the story of the high school student stealing lights off of the top of the high school when he fell through a skylight and sued the school. The alleged case is Bodine v. Enterprise High School, but I could not find any proof of its existence. I did find a news story about a burglar suing the homeowner who shot him, but no word on if it succeeded in a court of law. However, across the pond, I did find a published news story about an 18 year old boy trespassing, falling off a roof, and successfully suing for £567,000. As of 2003, they were trying to change the law to protect homeowners.
It depends on what country you live in, what state you live in, and how good of a lawyer the criminal can find, but ultimately most of the criminal-suing-the-victim stories are false. However, that doesn't mean that a decent attorney won't find a loophole and throw you under the bus. So remember, if you plan on shooting a trespasser, make sure you clearly state, in 2" high letters, "Trespassers will be shot."
*The content of Faith Through Fear is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact an attorney.*
© 2010 Nate Phillipps
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