HOUSE BILL No. 5335

February 18, 2014, Introduced by Reps. Jacobsen, Daley, Kelly, Johnson, Kowall, Lauwers, Jenkins, MacGregor, Haines, Victory, Bumstead, Somerville, Graves, Schmidt, McCready, Potvin, Pagel, Shirkey and Price and referred to the Committee on Judiciary.

 

     A bill to codify the liability of possessors of land for

 

injuries to trespassers.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"trespass liability act".

 

     Sec. 3. (1) A possessor of a fee, reversionary, or easement

 

interest in real property, including an owner, lessee, or other

 

lawful occupant, owes no duty of care to a trespasser 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

 

property so as not to endanger trespassers.

 

     (2) Notwithstanding subsection (1), a possessor of real

 


property may be subject to liability for physical injury or death

 

to a trespasser if any of the following apply:

 

     (a) The possessor injured the trespasser by willful and wanton

 

misconduct.

 

     (b) The possessor was aware of the trespasser's presence on

 

the property, or in the exercise of ordinary care should have known

 

of the trespasser's presence on the property, and failed to use

 

ordinary care to prevent injury to the trespasser arising from

 

active negligence.

 

     (c) The possessor knew, or from facts within the possessor's

 

knowledge should have known, that trespassers constantly intrude on

 

a limited area of the property and the trespasser was harmed as a

 

result of the possessor's failure to carry on an activity involving

 

a risk of death or serious bodily harm with reasonable care for the

 

trespasser's safety.

 

     (d) The trespasser is a child injured by an artificial

 

condition on the property and all of the following apply:

 

     (i) The possessor knew or had reason to know that a child would

 

be likely to trespass on the place where the condition existed.

 

     (ii) 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 a

 

child.

 

     (iii) The injured child, because of his or her youth, did not

 

discover the condition or realize the risk involved in

 

intermeddling with it or in coming within the area made dangerous

 

by it.

 


     (iv) The utility to the possessor of maintaining the condition

 

and the burden of eliminating the danger were slight as compared

 

with the risk to the child.

 

     (v) The possessor failed to exercise reasonable care to

 

eliminate the danger or otherwise to protect the child.

 

     (3) This section does not create or increase the liability of

 

a possessor of real property and does not affect any immunity from

 

or defenses to civil liability established by or available under

 

the statutes or common law of this state to which a possessor of

 

real property is entitled.