Occupiers’ Liability Part III: The Trespasser

April 05, 2011

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
Timshel@timshelservices.com

Editors Note: In the US, this is referred to as ‘Premises Liability’. While there may be differences from state to state, the principles are essentially the same.

Parts I & II of the series on Occupiers’ Liability has explored the issues surrounding an ‘occupier’ and ‘premises’,  and who is considered to be an invitee and a licencee, should injury occur while they on ‘occupied’ premises. Keep in mind that an occupier (anyone in control of premises) must use such care as may be required to protect invitees and/or licencees while they are on the premises.

So what happens if the user is a trespasser?

A legal definition of “trespasser” is “one who intentionally and without consent or privilege enters another’s property”. (Black’s Law Dictionary). Those provinces that have codified occupiers’ liability have specifically indicated that in those circumstances in which a person is trespassing, the person assumes the risks of use, both physical and legal. However, the statutes also provide that the assumption disappears if the occupier proceeds with wilful and reckless conduct that puts any user at risk.

From the perspective of the campus, this means that anyone who walks through the campus, and is not a student, employee, visitor or another with purpose on the campus could technically be described as a trespasser. However, most campuses in Canada are considered to be public institutions and therefore the argument that anyone is trespassing would be an uphill battle.

Frankly, Canadian law has taken a generous approach in the treatment of a trespasser who is injured on private property. There are few cases and the leading decision dates from 1984. It involved a snowmobiler who hit a cable hidden by snow on private property and suffered injury. The trial judge found that the property owner knew that the snowmobilers used the land, knew that the cable was in existence and knew that it could be hidden by snow. “It was unquestionably a trap, albeit not deliberately or intentionally set, but such an obvious trap that it was this reckless disregard which could be described as nothing less than gross negligence.” (Mr. Justice Potts, Onyschuk v. Silver Harbour Acres Ltd.). The judge went on to say that “In failing to take any action, it displayed a complete lack of common sense and humanity towards these plaintiffs”.
What this means is that occupiers owe a duty of care to users of property, even trespassers, in which there may be use restrictions, particularly if the occupier is aware of the use.

Canadian courts have been particularly lenient in at least two general circumstances:

1. If the trespasser is a child, a court will look at whether the use was alluring to a child and if the occupier knew that a child, or any child, might likely become a trespasser. In these circumstances, the court will look at the age of the child; the child’s ability to appreciate danger and the burden on the occupiers to eliminate the danger or protect children from danger as compared to the risk of the danger to children.
2. The second circumstance has caused much research across the provinces in Canada and that is recreational users such as the snowmobiler in the above case. With so much wide open land across the country, many snowmobilers, cross country skiers, bird watchers, etc, use private land without asking permission. The burden of responsibility has been increasing upon landowners and with such cases as that above, recreational use statutes have been enacted to limit liability risks to property owners. The standard of “wilful and reckless disregard” is still in place but with greater limitations.

The bottom line for campuses is that most of its occupiers’ risk will fall under the invitee or licencee risk. Those that have acres of parkland, will find that it is considered to be “public” space. Therefore, it is important to insure that there are no obvious risks to any user, discourage uses that could be considered unfriendly such as unsupervised parties, and be sure that campus police are well aware of the high risk areas and treat accordingly.