Trespassers: The Lowest Duty Owed in Premises Liability

Posted in Injury Law

Previously I had written numerous posts on premises liability, and how the duties owed to those on your property vary depending on one’s ‘status.’ The duties to ‘invitees’ and ‘licensees’, as well as the various sub-classifications included therein, have already been respectively explored, leaving only the lowest form of person on someone’s property: the trespasser. Now, initially I was not going to even write a post on this classification, because it simply does not have much practical application. However, something happened to me a couple weeks ago that made me change my mind.

It was around 7:00 PM on a Sunday night (Monday is our trash day); I took one container to the curb, then went inside to check the score of the Duke-Michigan tourney game, which was uncomfortably close (I had Duke in my final four). After the game ends and I’m confident my bracket isn’t busted (as of yet), I go back out to take the remaining container to the curb. I open the door to the garage, take a few steps, then hear a noise. I take a couple more steps and I come face to face with this male between the ages of I’d say 18-21; his eyes get as big as baseballs once he sees me, and it’s at that point he books it and I realize he was not here for a benevolent purpose.

After telling this story to probably every single one of my friends, the question that always came up was: assuming I walked out the second time with a gun tucked in my belt, would I have legally been allowed to shoot this guy. This question in turn implicates a principle of law commonly referred to as the ‘Castle Doctrine’ (as in a man is the king of his castle), which is likely a result of a 2007 case in Texas that tested the limits of this rule. In that case, a grand jury refused to indict Joe Horn, a 61 year old man who killed two burglars with multiple shotgun blasts to their backs after they exited the house they had just robbed. Adding another layer to that story, it was not even Mr. Horn’s house the two men had burglarized, but rather his neighbor’s.

Getting back to the point of this article, I’m sure it doesn’t take a lawyer to be able to conclude that the guy in my garage would be considered a ‘trespasser.’ But (and this is a big ‘but’), New Jersey is no Texas. In this State we consider ourselves slightly more ‘enlightened/progressive’ (some might say ‘civilized’…) than our sister states such as Texas, who allow considerably more latitude for dealing with intruders. As such, in New Jersey the use of force against a trespasser must be proportionate to the threat faced. So in my situation, I would have been legally justified in shooting that kid only if two conditions were satisfied:

  1. I must have honestly believed such deadly force was necessary to protect myself against death or serious bodily harm; and
  2. My belief in this respect must have been objectively reasonable. See State v. Jenewicz, 193 N.J. 440, 940 A.2d 269 (2008).

However, these conditions only deal with my criminal liability if I decided to shoot this guy. In terms of civil liability for such a property owner, this standard is somewhat different. Just because a trespasser is on my land does not mean I can simply treat him however I please. Of course I wouldn’t owe this guy anywhere close to the duty that is otherwise owed to a business invitee or licensee (see prior posts), but I am still under an obligation (or ‘duty’) to refrain from acts that willfully injure the trespasser. For instance, if I went on vacation for a few weeks, I could not set up a hair-trigger shotgun to go off if my front door is opened. Moral of the story: just get a loud alarm system, and avoid any possible confrontation at all with trespassers.