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Trespass bill targets national tort guidelines

Wisconsin legislators are racing to pass a bill that would confirm longstanding liability protections for property owners when trespassers are injured.

Special Session Assembly Bill 22 would codify that trespassers injured on private property generally cannot sue property owners for damages, a standard that has been upheld since the 1930s in Wisconsin courts.

The urgency to pass the bill stems from a national advisory group’s intention to publish contradictory guidelines. The Philadelphia-based American Law Institute in February will publish the second volume of “Restatement Third, Torts: Liability for Physical and Emotional Harm,” said ALI publications assistant Nancy Shearer.

The restatement’s intent in expanding landowner liability is to recognize that not all trespassers are the same, said Michael Green, the restatement’s co-author and a Wake Forest Law School professor.

Courts, he said, should be able to differentiate between a burglar breaking a leg and a neighbor doing the same while crossing a front lawn.

“The point is to recognize that there are different kinds of trespassing,” Green said. “In some cases, there is no chance of recovery. But in others, they ought to be treated differently.”

California was the basis for the restatement, Green said, because it was the first state to change its laws to acknowledge the same duty of care is owed to all people, except when the trespasser is convicted of a crime in connection with being on the property.

State Rep. Mike Kuglitsch, R-New Berlin, said he introduced AB 22 on Oct. 18 to prevent courts from interpreting the ALI guidelines. The bill would exempt property owners from liability in acts or omissions related to conditions on their property that cause injury or death to a trespasser.

But property owners still could be liable for harm to a child trespasser caused by a dangerous condition. Owners also could be liable for intentionally injuring a trespasser, except in cases of self-defense.

“This is a common-sense bill,” Kuglitsch said. “I don’t want to increase or decrease liability.”

Some attorneys worry that, absent a law in Wisconsin, some judges might adopt ALI provisions.

“This would expand liability for land possessors to include a greater duty of care and that could lead to more lawsuits,” said Andy Cook, a Madison attorney and legislative advisor to the Wisconsin Civil Justice Council, a business interest group.

If that happens, Cook said, property owners would have to pay more expensive insurance premiums if they have to consider liability protection from trespassers.

“If they don’t have insurance,” he said, “they could have their life savings wiped out in a lawsuit.”

While judges generally consider restatements in the absence of statutory or case law, there is no blanket adoption of ALI guidelines in Wisconsin, said Ann Jacobs, a Milwaukee personal injury lawyer with Domnitz & Skemp SC. Given the discretionary use of restatements, Jacobs questioned whether judges in Wisconsin would disregard decades of case law regarding trespass liability.

“The existence of restatements doesn’t undo that history,” she said. “It’s something that can be persuasive, but it can also be completely disregarded if a judge says, ‘I am not going to adopt it.’”

Even if Wisconsin fails to pass a law to head off the ALI guidelines, there already is one on the books, said Victor Harding, a Milwaukee lawyer with Warshafsky, Rotter, Tarnoff & Bloch SC. He said the recreational use statute — Wis. Stat. 895.52 — generally prevents someone who is unintentionally injured on another’s property from suing the owner.

Harding said he has not heard of a trespasser liability case in more than a decade.

“That statute grants immunity in just about every case,” he said. “So, realistically, all those suits will be short-stopped by the recreational use statute. It’s the first defense I would raise.”

Still, Cook said, attorneys still could build cases around the ALI restatement if Wisconsin doesn’t step in.

“There are creative attorneys out there,” he said.


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