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.