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Monday, May 13, 2019

Ask the Campbell County Attorney: Liability to Trespassers


By Steven Franzen 

A reader of this column asked that I address the liability of a property owner to a trespasser onto the property that gets hurt on the property.  This could include such persons as hunters, bicycle riders, quad runners or just kids walking onto the land.


There is a Kentucky law and many court decisions that deal with this issue.  KRS 381.232 states that “The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.”  Kentucky statute also defines a trespasser to be “any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied, but does not include persons who come within the scope of the ‘attractive nuisance’ doctrine.”

Therefore, if someone comes upon your property without your consent and gets injured, you as the property owner are not liable unless you somehow intended that the person be injured.  For instance, if you put a cable across a road going onto your property and the cable was very visible as a result of its size or had some flags or other markings on it and someone drove their bike through the cable and was injured, you would not be liable.  However, if you hung a very thin cable that could not easily be seen with the thought of knocking someone off of their bike if they tried to go down the road, then you could possibly be held liable in that you may have intended the trespasser to be injured.

Also, as mentioned above, a trespasser is not someone who comes within the scope of the “attractive nuisance” doctrine.  The attractive nuisance doctrine basically indicates that if you have something on your property that in effect attracts children or others onto your property and they are thereby injured, then that person would not be considered a trespasser and you could be held liable for their injuries.  For instance, if you owned a cattle farm next to a subdivision with young children and you placed a watering trough close to the subdivision, then you could possibly be held liable if a young child drowned in the watering trough because it was an attractive nuisance to the child who may have thought the watering trough was a wading pool.

If you own land and people are trespassing upon it, I would suggest first of all putting up signs at the locations where you think people are entering the land, stating “Private Property-No Trespassing” and that you also tell the trespassers, or better yet, give them a written notice and keep a copy, to stay off your land.  If the trespasser is then hurt, you would not be liable for their injuries except as noted above.  If people still trespass on your land after signs are posted and they have been told to stay off, you could file a police report and request that a criminal trespass charge be filed against the trespasser which carries a fine of up to $250.00 and up to ninety (90) days in jail for entering onto land when notice against trespassing is given by fencing or other enclosure and a fine of up to $250.00 only for trespassing upon property.


If you have any topics you would like to have covered in this column, please contact my office by e-mail at countyattorney@campbellcountyky.gov, by phone at 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.


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