LRB-3129/1
PJH&TKK:cjs:jf
September 2011 Special Session
2011 - 2012 LEGISLATURE
October 18, 2011 - Introduced by
Committee on Assembly Organization, by request
of Governor Scott Walker, Representative Kuglitsch, and Senator Galloway.
Referred to Committee on Judiciary and Ethics.
AB22,1,2
1An Act to create 895.529 of the statutes;
relating to: the duty of care owed to
2trespassers.
Analysis by the Legislative Reference Bureau
This bill sets forth limits on the civil liability of private property owners to
trespassers. Under the bill, a private property owner, including a lawful tenant or
other occupant of private property, owes no duty of care to a trespasser on his or her
property and may not be found liable for an act or omission relating to a condition
on his or her property that causes injury or death to a trespasser, except under
certain circumstances. The bill defines a trespasser as anyone who enters onto
private property without the express or implied consent of the property owner and
sets forth criteria for determining whether the owner gave implied consent to enter
onto the property.
Under the bill, a private property owner may be liable for injuries that he or she
intentionally causes to a trespasser, unless the private property owner was acting
reasonably in self-defense or in the defense of another.
Under the bill, a private property owner may, under certain circumstances, be
liable for injuries to a trespasser who is a child. Liability may attach if the child was
injured because of an artificial condition on the property that the owner knew or
should have known was unreasonably dangerous and knew or should have known
a child was likely to trespass near and if other factors indicate that the owner acted
unreasonably in failing to prevent harm to the child.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB22, s. 1
1Section
1. 895.529 of the statutes is created to read:
AB22,2,3
2895.529 Civil liability limitation; duty of care owed to trespassers. (1) 3In this section:
AB22,2,64
(a) "Private property owner" means an owner, other than a governmental body
5or nonprofit organization, of property, and includes a lessee, tenant, or other lawful
6occupant.
AB22,2,87
(b) "Property" means real property and buildings, structures, and
8improvements thereon.
AB22,2,109
(c) "Trespasser" means a natural person who enters onto the property of
10another without the express or implied consent of the private property owner.
AB22,2,14
11(2) Except as provided in sub. (3), a private property owner owes no duty of care
12to a trespasser on his or her property and may not be found liable for an act or
13omission relating to a condition on his or her property that causes injury or death to
14a trespasser.
AB22,2,17
15(3) A private property owner may be liable for an act or omission relating to
16a condition on his or her property that causes injury or death to a trespasser under
17any of the following circumstances:
AB22,3,218
(a) The private property owner intentionally caused the injury or death. This
19paragraph does not apply if the private property owner used reasonable and
20necessary force for the purpose of self-defense or the defense of others under s.
1939.48 or used reasonable and necessary force for the protection of property under
2s. 939.49.
AB22,3,33
(b) The person injured or killed was a child and all of the following apply:
AB22,3,44
1. The injury or death was a result of an artificial condition on the property.
AB22,3,65
2. The private property owner knew or should have known that the artificial
6condition presented an unreasonable risk of death or serious bodily harm to children.
AB22,3,87
3. The private property owner knew or should have known that a child or
8children were likely to trespass at the location of the artificial condition.
AB22,3,119
4. The child injured or killed did not discover the artificial condition or realize
10the risk involved with the artificial condition until after the child came within the
11area made dangerous by the artificial condition.
AB22,3,1412
5. The utility to the private property owner of maintaining the artificial
13condition and the burden of eliminating the danger were slight as compared to the
14risk to the injured or killed child.
AB22,3,1615
6. The private property owner failed to exercise reasonable care to eliminate
16the danger or otherwise protect the injured or killed child.
AB22,3,20
17(4) In determining whether a person has implied consent to enter onto the
18property of a private property owner, a trier of fact shall consider all of the
19circumstances existing at the time the person entered onto the property, including
20all of the following:
AB22,3,2221
(a) Whether the private property owner acquiesced to previous entries by the
22person or by other persons under similar circumstances.
AB22,3,2323
(b) The customary use, if any, of the property by other persons.
AB22,3,2524
(c) Whether the private property owner represented to the public that the land
25may be entered for particular purposes.
AB22,4,2
1(d) The general arrangement or design of any buildings, structures, or
2improvements on the property.
AB22,4,6
3(5) This section does not create or increase any liability on the part of a private
4property owner for circumstances not specified under this section and does not affect
5any immunity from or defenses to liability available to a private property owner
6under common law or another statute.
AB22,4,98
(1)
This act first applies to actions that are filed on the effective date of this
9subsection.
