Trespassers, licensees, and invitees… What’s the difference?

In Indiana, a landowner’s duty to an entrant on their property is subject to a distinction between trespassers, licensees, and invitees. The first post in this series addresses the trespasser and the duties of care that a landowner owes to those who are unlawfully on their property.

Trespass in Indiana can be considered a criminal or civil matter. Criminal trespass occurs when a person either intentionally enters the property of another after having been denied entry or the person refuses to leave after being instructed to. Civil trespass occurs any time a person enters the property of another without authorization. Criminal trespass, at minimum, is a Class A misdemeanor, which can lead to a sentence of up to one year of imprisonment and a fine of up to $5,000. Depending on the circumstances, the trespass may qualify as a Level 5 felony. Civil trespassers may be sued by the landowners for damages.

Trespass is subject to strict liability, meaning that someone who enters your property without permission is civilly liable for trespassing even if they did know they were trespassing. Indiana landowners owe the lowest duty of care to trespassers, compared to licensees or invitees. Pursuant to Indiana Code section 34-31-11-3, a possessor of land does not owe a duty of care to a trespasser, except to refrain from willfully or wantonly injuring the trespasser, after the trespasser has been discovered on real property possessed by the possessor of land.

Willful and wanton conduct may consist of either intentional acts done to the trespasser without regard for the natural and probable consequences of injury or a failure to act when the actor has actual knowledge of the probable consequences and has the opportunity to avoid the consequences. Willful or wanton misconduct is conduct that is so deviant from everyday standards that the trespasser cannot be expected to anticipate it. Mere negligence is insufficient to sustain a cause of action for a trespasser.

However, be aware that Indiana law includes a carveout to the otherwise broad limitation of liability for landowners when it involves physical injury to or death of a child. Specifically, liability may exist if the following factors are met: a landowner permits a structure or condition to exist on their land, that structure or condition is particularly dangerous to children, the danger is unlikely to be comprehended by children, the structure or condition is attractive to children and entices them to play on the structure or condition, the owner is aware of the likelihood that children will trespass and be injured, and the injury is a natural, probable, foreseeable result of children trespassing on the structure or condition.

If you have questions concerning your liability as a landowner or want assistance understanding your duties, please reach out to one of our attorneys at McNeelyLaw LLP by calling (317) 825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.