M Civ JI 19.07 Duty of Possessor of Land, Premises, or Place of Business to Trespasser

[ Because plaintiff was a trespasser on defendant’s ( land / premises / place of business ) ] / If you find that plaintiff was a trespasser on defendant’s [ land / premises / place of business ], then defendant had a duty to plaintiff only if you find that one or more of the following circumstances existed:

(1) Defendant injured the plaintiff by willful and wanton misconduct, or

(2) Defendant was aware or in the exercise of ordinary care should have known, of plaintiff’s presence on the [ land / premises / place of business ], but [ he / she / it ] failed to use ordinary care to prevent injury to plaintiff arising from defendant’s active negligence, or

(3) Defendant knew, or should have known from facts within [ his / her / its ] knowledge, that trespassers constantly intrude on a limited area of [ his / her / its ] [ land / premises / place of business ] and plaintiff was harmed because:

(a) Defendant carried on an activity in that limited area,

(b) that involved a risk of death or serious bodily harm, and

(c) [ he / she / it ] failed to use reasonable care for the trespasser’s safety.

If you find that one or more of these circumstances existed, then defendant had a duty to exercise reasonable care to put the land in a condition reasonably safe for plaintiff or to carry on activities on the land so as not to endanger trespassers.

Note on Use

If there is a factual question as to the legal status of the plaintiff as invitee, licensee, or trespasser, M Civ JI 19.01 should be given.

M Civ JI 19.01 defines “trespasser”; M Civ JI 14.11 defines “wanton misconduct”; 14.12 defines “willful misconduct.”

“Active negligence” is not yet defined in MCL 554.583(2)(b) and since this statute has not yet been subject to judicial interpretation, the committee is not providing a definition.

This instruction may apply to a child trespasser who claims injury due to a non-artificial condition. See M Civ JI 19.07A.

This instruction does not affect the applicability of any instructions for immunities or defenses to which the defendant-possessor is otherwise entitled under statute or common law. See MCL 554.583(3).

Comment

See Blakeley v White Star Line, 154 Mich 635; 118 NW 482 (1908); MCL 554.583

History

M Civ JI 19.07 was added January 1982. Amended November 2015.