Are Landowners Liable for Trespassers' Injuries?
Under Texas law, landowners owe different duties to different categories of persons on their property. From a liability perspective, so long as a landowner meets the required duty for the category of person on the property, he or she is not liable for the person’s injury.
Anyone who enters a landowner’s property without permission falls under the category of trespasser. Under Texas law, this category receives the least protection, and the only duty a landowner owes to a trespasser is to avoid intentionally injuring that person or acting with “gross negligence.”
Think of intentional injury in this way: If someone comes on your property without permission and falls into a hole, you would not be liable. But if you knowingly push someone into the hole, you may have a problem.
Texas statute defines “gross negligence” as an act or omission that:
- When viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
- Of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
Put another way, a defendant must know and not care about a property’s extremely high risk of serious injury. “Gross negligence” requires a high level of proof for a plaintiff to succeed on a claim against a landowner.
One legal example in Texas is State v. Shumake: In that case, a young girl was tubing in a state park and drowned after she was sucked into a hidden man-made culvert. Her family was able to prove the state park was aware of the culvert, knew other persons had recently nearly drowned there, and did nothing to remedy the danger or provide warning. The Texas Supreme Court concluded this satisfied the heightened standard for liability.
As long as landowners don’t act with gross negligence or intentionally harm a trespasser on their land, they will likely not be held liable. However, not being liable and not getting sued are two separate things.
Although a landowner may be able to win a lawsuit filed by an injured trespasser, the legal costs to do so would likely be borne by the landowner. Because of this, it’s a good idea for landowners to carry a liability insurance policy. The necessary coverage depends on the level of risk involved with the property.
For example, a landowner with a ranch in the middle of nowhere might need less insurance coverage than a landowner who operates a popular pick-your-own pumpkin farm.
Landowners should speak with an insurance agent to determine the right level of coverage for their operation.
So this only opens up the question: “Who is a trespasser?” Would a potential buyer, or buyer’s representatives (lender, appraiser, inspector, surveyor, etc.) be considered a “trespasser?” What is “without permission?” Most of the contract forms we use today specifically grant the buyer and buyer’s representatives permission to be on the property!
I don’t think that it opens up a question. The article pretty well answer the question as to who is a trespasser.
Agreed. That doesn’t open up a question at all. “Anyone who enters a landowner’s property without permission falls under the category of trespasser.” Who would consider a buyer, buyer’s rep, lender, appraiser, inspector, surveyor booking an appointment through a showing service a trespasser? Oh yeah, that guy up there. David LOL
Ya kinda ask and answered your own question within the question? Or are you just making a statement of opinion to disagree with the state of Texas? If the contract forms used today specifically grant the buyer and buyer’s representatives permission to be on the property – then what was your question?
excellent article and topics I commend you for articles like this one
Great information! David Davis posed a really good question: “”Who is a trespasser?””
Michele, The current 1-4 Family Residential Contract (Resale) in paragraph 7 addresses this as I see it pertaining to our industry. Am I missing something here?
Maybe that the article is directed toward educating landowners, and has nothing to do with REALTORS and showing a property.
Since the legal example this article sites is the Shumaker case my question revolves around water. Regardless if the water is on state land or private land … the state owns all water systems which seems to help in creating a loop hole in and around the definition of trespassing.
Assuming of corse the private land owner did not build or place any objects in the normal flow of the river bed. Could a private land owner be liable for an “accident” on a TX water system?
There is more to add. On acreage, if there are no trespass signs AND purple painted posts, trespassers beware
Tresspassing is not right and is common in rural areas; sneaking on farms to hunt or fish. This is punishable by law and the homeowner has the right to take agressive action and often at gun point. If tresspassing signs, paints, etc are in place the law is weighted in favor of the owner; not the tresspasser. There is a REASON the signs are there ; to prevent anyone from unknowingly encountering a dangerous area; dangerous animals, etc. SO Tresspassers beware. Its not your land, its not your right. Some signs even state you are in eminent danger of being… Read more »
Agree. If the trespasser is a relative local sheriff wont remove them for you even tho they are drugies eho you have asked to leave. They are not a tenant. They stole your address using it when they get arrested for drugs. Currently spending court costs because sheriff says its a civil matter. According to WHO the person trespassing is if they help or not
I would like to know what the other categories of persons on the property are and what the liability for them is? This seems to only deal with trespassers.