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Michigan: State Codification of Trespass Liability

Posted By USFN, Tuesday, November 25, 2014
Updated: Tuesday, October 13, 2015

November 25, 2014


by Matthew B. Theunick
Trott & Trott, P.C. – USFN Member (Michigan)

On June 26, 2014, the Michigan legislature enacted the Trespass Liability Act, Public Acts of 2014, Act. No. 226, to codify the liability of possessors of land for injuries to trespassers. Whereas, state statutes criminalize the unlawful entry on another person’s property without permission, civil liability for injuries to trespassers — like other premises liability claims — was governed by common law in Michigan.

The impetus for Michigan’s codification of civil liability for injuries to trespassers was owing to the desire to preserve the status quo, and not increase the liability of landowners vis-à-vis trespassers. The Act notes in Sec. 3.(3) that, “This section does not increase the liability of a possessor of land and does not affect any immunity from or defenses to civil liability established or available under the statutes or common law of this state to which a possessor of land is entitled.” Thus, through the codification process, property owners would obtain greater certainty of what is expected of them in relation to trespassers, and future changes would be done legislatively, as opposed to judicially.

As noted in the Legislative Analysis of House Bill 5335, Michigan’s codification process was also prompted, in part, as a reaction to the treatment of premises liability in the latest edition of the influential, but not precedential, Restatement of Torts (3rd) released in 2012. It departed from the 1965 Restatement (2nd) by vastly expanding the duty of landowners to exercise reasonable care in making the premises safe to all persons entering upon the land, even trespassers. Michigan’s efforts to codify trespass liability appears to be a trend, as the Michigan House’s Legislative Analysis notes that “at least 13 states have passed legislation … to prevent their states from adopting the expanded philosophy of the Restatement (3rd).”

Accordingly, the Michigan Act broadly notes that the possessor of a fee, reversionary, or easement interest in land (i.e., an owner, lessee, or other lawful occupant) owes no duty of care and is not liable to a trespasser for physical harm caused by the possessor’s failure to exercise reasonable care to put the land in a condition reasonably safe for the trespasser, or to carry on activities on the land so as not to endanger the trespasser.

On the other hand, however, a possessor of land may be subject to liability for physical injury, or death to a trespasser, if any of the following apply:
• The possessor injured the trespasser by willful and wanton misconduct.
• The possessor was aware of the trespasser’s presence on the land (or should have known in the exercise of ordinary care) and failed to use ordinary care to prevent injury arising from active negligence.
• The possessor knew (or should have known from facts within his or her knowledge) that trespassers constantly intrude on a limited area of the land, and the trespasser was harmed because the possessor failed to use reasonable care for the trespasser’s safety when engaging in an activity involving a risk of death or serious bodily harm.
• The trespasser is a child injured by an artificial condition on the land and all of the following apply:

o The possessor knew (or had reason to know) that a child would be likely to trespass on the place where the condition existed.
o The possessor knew (or had reason to know) of the condition and realized (or should have realized) that the condition would involve an unreasonable risk of death or serious bodily harm to the child.
o Because of the child’s youth, the child did not discover the condition or realize the risk involved in trespassing in the area of that dangerous condition.
o The utility (or benefit) to the possessor of maintaining the condition, and the burden of eliminating the danger, were slight as compared with the risk to the child.
o The possessor failed to exercise reasonable care to eliminate the danger, or otherwise, to protect the child.


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