Trespass by the victim as a defense

Overview of trespass

Trespass upon real property is defined, generally speaking, as the act of going upon the real property of another without his consent, his express or implied invitation, or the legal right of entry. It extends to any physical invasion of land without permission or legal right. Trespass requires no bad intent or knowledge that one is violating another’s rights: all it requires is a voluntary act of being on someone else’s land or being responsible for an object being on someone else’s land. There is no de minimis exception for trespass: placing a toe on someone else’s land or building one millimeter over the boundary line is a trespass. Putting part of the body, such as a hand, finger, or face, over a fence generally is considered a trespass. Restatement of Torts (Second), sec. 159(1) provides, “Except as stated in Subsection (2), a trespass may be committed on, beneath, or above the surface of the earth.” Illustration 3 of sec. 159 is more specific: “extending an arm over a fence into the space above the surface of plaintiff’s land is a trespass.” But there are numerous exceptions to the general rule of trespass.

Examples of successful use of the trespass defense

The trespass defense is illustrated by Kenney v. Barna (Neb. 1983) 215 Neb. 863. It held as follows: 1. A trespasser is a person who enters or remains upon premises in possession of another without the express or implied consent of the possessor. 2. Trespass: Minors. While the age of a child will not protect such a child if the act is denominated a trespass, yet, as trespass is an intentional tort, an initial determination must be made whether the child concerned formed the intent to do the physical act which released the harmful force. 3. Trespass. A person can trespass on another’s property by simply extending his or her arm over the boundary fence. 4. Trespass: Minors. In making a determination as to whether a child was capable of the necessary intent to be classed as a trespasser, the standard of conduct to be used is that of a reasonable person of like age, intelligence, and experience under the circumstances.

When trespass is proven, it can constitute a crime or a defense to a civil action. Most dog bite statutes incorporate the trespass defense. See, for example, the California dog bite statute and Fullerton v. Conan (1948) 87 Cal.App.2d 354 (against clear prohibition by the dog owner, the young child opened a gate and wandered into the dog owner’s back yard while she and her mother were guests; held that the child was trespassing and, therefore, the dog owner was not liable under the dog bite statute).

Therefore, a victim who was bitten on private property, therefore, must usually establish he had a right to be there and therefore fits within an exception to the trespass defense.

Exceptions to the trespass defense

There are many exceptions to the trespass defense. See Defenses – Trespass by U.S. Legal. The most common is a leasehold interest in the property or an explicit invitation, such as when one is an invited guest at a party. Examples of implicit invitations include but are not limited to:

  • Neighbors who customarily enter each other’s yards and even homes without prior notice.
  • Children who often play in a front yard or a back yard.
  • A customer who enters a store that is open for business.

The law provides an implied license to approach a home by the front path, knock promptly, and wait briefly to be received. (Florida v. Jardines (2013) 569 U.S. 1, 8 [133 S.Ct. 1409, 185 L.Ed.2d 495].) While that implied license may be revoked, courts have found that a fence or no trespassing signs alone are not sufficient to revoke that license. (See State v. McIntyre (1993) 123 Ore.App. 436, 440-441 [finding house surrounded by tall fence with metal driveway gate insufficient to conclude homeowner intended to exclude visitors]; State v. Rogoulot (Idaho App. 1992) 846 P.2d 918, 923 [” ‘No Trespassing’ ” signs “cannot reasonably be interpreted to exclude normal, legitimate, inquiries or visits by mail carriers, newspaper deliverers, census takers, neighbors, friends, [and] utility workers”].) In U.S. v. Holmes (M.D.Fla. 2015) 143 F.Supp.3d 1252, 1266, the court held that a fence with an unlocked gate, no trespassing signs, beware of dog signs, the lack of a knocker or doorbell, and other physical obstructions to the front door did not revoke the implied license of police conducting a knock and talk.

There are many other situations where a person will not be regarded as a trespasser. These include the common law defenses (e.g., necessity) and exceptions and modifications imposed by legislation or regulation. There are very important schemes of antidiscrimination laws governing public accommodations and the right of entry afforded to land surveyors. Such exceptions tend to govern certain kinds of land, or they are qualified by notice-giving and purpose restrictions.

Trespass is no defense when scienter is proved

If the victim is a trespasser, the question of compensation does not necessarily end there. The next issue is whether the dog was known to be vicious. Knowledge of a dog’s viciousness is referred to as “scienter.” The owner, harborer, or keeper of a vicious dog is not permitted to use the defense of trespass against a dog bite victim. The rule is stated in Restatement, Second, Torts § 338 (1965):

A possessor of land who is in immediate control of a force, and knows or has reason to know of the presence of trespassers in dangerous proximity to it, is subject to liability for physical harm thereby caused to them by his failure to exercise reasonable care (a) so to control the force as to prevent it from doing harm to them, or (b) to give a warning which is reasonably adequate to enable them to protect themselves.

See the discussion in Farrier v. Payton (1977) 562 P.2d 779, 785-786.

For that reason, a dog bite victim who was bitten while trespassing should not base his claim upon the state’s dog bite statute, but on the common law ground of scienter (i.e., the one bite rule). For more about the distinctions between dog bite statutes and scienter, see Legal Right of Dog Bite Victims in the USA and The One Bite Rule.