Legally Speaking – with Bob Mionske: Forgive us our trespasses

Hi Bob,I own a vacant lot of land and I occasionally see tracks from mountainbikes in the dirt. I am an avid cyclist, but wonder if I am at risk ofa lawsuit by allowing them to ride on my property. I do have a NO TRESPASSINGsign posted.TimSpokane, Washington Dear Tim,When I was a kid we had a great stretch of woods, with a beautifulstream running their length, near my home. The woods happened to be ownedby a mean old farmer who asserted his property rights by way of shotgunwith rock salt filled shells. We would hear the old man shooting off hisgun, but figured he was shooting skyward as a

By Bob Mionske

Legally Speaking - with Bob Mionske: Forgive us our trespasses

Legally Speaking – with Bob Mionske: Forgive us our trespasses

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Hi Bob,
I own a vacant lot of land and I occasionally see tracks from mountainbikes in the dirt. I am an avid cyclist, but wonder if I am at risk ofa lawsuit by allowing them to ride on my property. I do have a NO TRESPASSINGsign posted.
Tim
Spokane, Washington

Dear Tim,
When I was a kid we had a great stretch of woods, with a beautifulstream running their length, near my home. The woods happened to be ownedby a mean old farmer who asserted his property rights by way of shotgunwith rock salt filled shells. We would hear the old man shooting off hisgun, but figured he was shooting skyward as a warning- until the fatefulday when we were caught off guard in the middle of a corncob fight andreceived our judgment and sentence in one loud boom of his 12 gauge. We got little sympathy when we ran back home. Indeed, my step dad, when he found out that we had been destroying the farmer’s crop, could hardly contain his schadenfreude.

The legal standard applicable to the trespass issue is well settled.The first thing to determine is the legal duty of care owed by alandowner to a person entering the premises. This depends on whether theentrant is a trespasser, licensee, or invitee. A trespasser is any person whose entrance is un-consented to and unprivileged. A licensee is one who is privileged to enter or remain on the land only by virtue of the owner’s consent. An invitee is a person who was on the premises for the benefit of the landowner (such as a tenant or customer). Generally, a landowner owes trespassers and licensees onlythe duty to refrain from willfully or wantonly injuring them, whereas toinvitees, the landowner owes an affirmative duty to use ordinary care tokeep the premises in a reasonably safe condition.

In your case, if the “no trespassing” sign is clearly visible, the mountainbikers would be considered trespassers and you would not be liable forany injury that happens to them while they are trespassing on your property.Spokane Municipal Code §10.12.03 helps your defense by sayingthat:

 “a person who enters or remains upon unimproved andapparently unused land, which is neither fenced nor otherwise enclosedin a manner designed to exclude intruders, does so with license and privilegeunless notice against trespass is…given by posting in a conspicuous manner.”

 Hence, the “no trespassing” sign is sufficient warning and you haveno duty to a trespasser for coming onto your property and injuring themselves.But, of course, there is an exception. Although, generally a landownerowes no duty to a trespasser (except to refrain from causing willful orwanton injury to him) under the exception known as the Attractive nuisancedoctrine, the landowner may be liable to trespassing children.

The Attractive Nuisance Doctrine establishes that a landowner may beliable for physical injury caused by artificial conditions to trespassingchildren when the landowner fails to exercise reasonable care to eliminatethe danger or otherwise to protect the children (see- Ochampaugh v.City of Seattle, 91 Wash. 2d 514, 519(1979) (quoting Restatement (Second)of Torts § 339(e)). This doctrine is usually mentioned in caseswere a child drowns or falls into a mineshaft, etc. The elements requiredfor a landowner to be subject to liability for physical harm to trespassingchildren caused by an artificial condition upon the land are as follows:

(a) the place where the condition exists is one upon which the landowner knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the landowner knows or has reason to know and which he realizes or should realize will involve an unreasonablerisk of death or serious bodily harm to such children, and (c) the childrenbecause of their youth do not discover the condition or realize the riskinvolved in intermeddling with it or in coming within the area made dangerousby it, and (d) the utility to the landowner of maintaining the conditionand the burden of eliminating the danger are slight as compared with therisk to children involved, and (e) the landowner fails to exercise reasonablecare to eliminate the danger or otherwise to protect the children.

In summary, your liability depends on the condition of your vacant lot and the age of the mountain bikers. Either way, it may make sense to speak with your insurance agent about what kind of coverage you have on this property.Good luck,
Bob
(Research and drafting assistance provided by Katherine Chung-lawstudent- Willamette University School of Law)
 


Now read the fine print:
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached theSaturn Professional Cycling team for one year before heading off to lawschool. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.