Sen. Bray has introduced SB 306 which would specify a limited duty of care to trespassers on one’s property. Basically, a landowner would have to refrain from willful and wanton behavior toward a trespasser the landowner knows about. Otherwise, the landowner would have no duty of care toward the trespasser and if the trespasser got injured while on the property then that’s his tough luck. There is an exception that would make landowners liable under some circumstances for injuries sustained by trespassing children if the cause of the injury was what amounts to an attractive nuisances to children.
I thought the duty of care used in SB 306 is pretty much the same as what the court’s have articulated with respect to trespassers. “The duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence.” Yates v. Johnson County, 888 N.E. 2d 842, 848-849 (Ind. Ct. App. 2008). So, I’m not sure what this bill is attempting to remedy. Maybe it’s the definition of “trespasser” as someone who “enters or remains on real property possessed by another person without: (1) a right to enter or remain on the real property; (2) the consent of the other person; or (3) an actual or implied invitation from the other person.” But, at a glance, that looks a lot like what I’ve seen for the definition of trespasser in the case law.
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