Liability for Trespasser Injuries in West Virginia

Posted in Injuries on June 26, 2020

Most property owners do not worry about keeping their premises safe for trespassers. They often assume they do not owe duties of care to trespassers, who do not have permission to enter a property. Yet if an accident happens on your property and it injures a trespasser, you may face liability depending on the circumstances. West Virginia’s premises liability laws related to trespassers are complex and important to understand as a landowner.

What is a Trespasser?

West Virginia law identifies three different types of property visitors: invitees, licensees and trespassers. Invitees and licensees both have legal permission to enter a property. An invitee is someone you welcome to your property by implied or express invitation. It can include a customer at a business or a guest you invite to your home. A licensee also has permission, but not by invitation. It can describe someone who visits a property unsolicited, such as a salesperson or unexpected guest.

A trespasser does not have permission to enter a property. Trespassers are people who illegally enter private properties. They can include people who do not realize they are trespassing. Trespassing is an offense that could lead to criminal charges against the perpetrator. As a property owner, you do not owe the same duties of care to trespassers as you do to invitees and licensees.

What Duties of Care Do Property Owners Owe Trespassers?

Guests on a property who are not trespassers deserve reasonably safe premises that are free from obvious hazards. Property owners in West Virginia must search for property defects, repair known hazards and warn people of hidden risks if they are invitees. Owners owe the same duties of care, minus the duty to search for unknown risks, to licensees. In the case of a trespasser, a property owner’s duties of care are unique.

• The duty not to intentionally cause harm. As a property owner, you may not willfully cause harm to a trespasser, except in self-defense. You cannot set up a trap to catch and injure a trespasser, for example, if you are not in danger. You may not shoot a trespasser who is illegally on your property if he or she is leaving.
• The duty not to use deadly force. It is against the law in West Virginia to use deadly force against a trespasser who is not posing a reasonable threat of bodily injury or property damage. While you may use deadly force to stop an armed robber, you cannot do so only because someone is trespassing – even if that trespasser has a weapon.

West Virginia Code 55-7-27 permits property owners to use justifiable force to repel a criminal trespasser. If another reasonable and prudent property owner would not have injured the trespasser in the same way, you might face charges. You could also face civil liability if a trespasser suffers an injury due to a property defect if that trespasser is a minor.

What is an Attractive Nuisance?

The laws change when the trespasser is a minor under the age of 18. West Virginia law gives child trespassers special considerations. Even if a minor does not have permission to be on your property, you must treat the minor as you would an invitee. You have a legal obligation to warn children about dangerous conditions on your property, as well as to keep your land reasonably safe for wandering children. If you have a swimming pool, you lawfully must put up a barrier and warn children to keep out.

An attractive nuisance is a dangerous property element that is especially enticing to kids. It is your responsibility to ensure the safety of a child trespasser if your land has attractive nuisances. Failure to keep your property reasonably safe for trespassing children in West Virginia could lead to liability for their related injuries. This could mean paying for the child’s medical expenses and other damages. Talk to a premises liability lawyer in West Virginia for more information about liability for trespasser injuries.