NY State Senate Bill 2011-S5091

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to judiciary
May 03, 2011	referred to judiciary

co-Sponsors

2011-S5091 (ACTIVE) - Details

See Assembly Version of this Bill:: A7590
Current Committee:: Senate Judiciary
Law Section:: Real Property Law
Laws Affected:: Add Art 11 §350, RP L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S3619, A4824
2015-2016: S5015, A1760
2017-2018: A4769

2011-S5091 (ACTIVE) - Summary

Relates to the liability of land owners, lessees and occupants to trespassers; provides liability in certain instances of injury to children.

2011-S5091 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5091

TITLE OF BILL:
An act
to amend the real property law, in relation to the duty of land
possessors to those who trespass

PURPOSE:
The purpose of this act is to prevent trespassers from being elevated to
the same legal status as non-trespassers in situations where tort law
previously treated trespassers differently out of respect for the rights
of property owners and sound public policy.

SUMMARY OF PROVISIONS:
Section 1 codifies the longstanding liability rule across the country
that a land possessor owes no duty of care to a trespasser except to
refrain from causing harm to a trespasser by an intentional, unlawful,
willful, or wanton act.

This rule is derived from the Restatement (Second) of Torts § 333
(1965), which the vast majority of states apply. It is also consistent
with New York common law prior to the state's adoption of a unitary
standard of reasonable care. See Beauchamp v. New York City Housing
Auth., 190 N.E.2d 412, 415 (N.Y. 1963) ("Under the common-law
authorities in this State an owner's only responsibility with respect to
trespassers.

intentional injuries.") (internal citation omitted).

A land possessor may continue to use justifiable force to repel a
criminal trespasser as provided by New York's "Castle Doctrine" law, see
N.Y. Penal Law §5 35.20-.25.

Section 2 codifies the commonly recognized exceptions in the Restatement
(Second) of Torts in which a land possessor may be subject to liability
for harm to a trespasser:

(1) A land possessor may be subject to liability to a child trespasser
injured by an artificial condition on the land that the child did not
appreciate but was known or should have been known to the land
possessor.

(2) A land possessor may be subject to liability to a trespasser injured
by an artificial condition on the land that the trespasser did not
appreciate but was known to the land possessor, and the harm occurred in
a limited area where the land possessor knew or should have known that
trespassers constantly intrude.

(3) A land possessor may be subject to liability to a trespasser if the
possessor discovered the trespasser on the land and failed to exercise
ordinary care for the trespasser's safety as to any artificial
conditions or dangerous activities being carried out on the land.

These exceptions to the general "no duty" to trespassers rule are found
in the Restatement (Second) of Torts §§ 334-339 (1955). The overwhelming
majority of states apply some or all of these exceptions.

Section 3 provides a standard definition for the term "trespasser."


This definition is consistent with the longstanding definition provided
by the New York Court of Appeals. See Birch v. City of New York, 83 N.E.
51, 53 (N.Y. 1907) ("The owner or occupier of real property is under no
obligation to make it safe, or to keep it in any particular condition
for the benefit of trespassers, intruders, mere volunteers, or bare
licensees coming upon it without his invitation, express or implied.").

Section 4 clarifies that the legislation does not create or increase the
liability of any person or entity.

JUSTIFICATION:
In the overwhelming majority of states, a land possessor owes no duty of
care to a trespasser except in a few narrow and well-circumscribed
instances. New York is one of a minority of states that holds a land
possessor responsible for injuries to any reasonably foreseeable
entrants on the land, including unwanted trespassers. This means that a
person who enters another's property without legal right or permission,
and sustains an injury, can sue the land possessor for that injury. This
legislation dials back such broad and open-ended liability exposure by
codifying traditional common law liability rules relating to trespassers
that exist in most other states.

LEGISLATIVE HISTORY: New bill

FISCAL IMPLICATIONS: None

EFFECTIVE DATE:

Immediately

2011-S5091 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5091

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen.  SEWARD -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the real property law, in relation to the duty  of  land
  possessors to those who trespass

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The real property law is amended by adding a new article 11
to read as follows:
                               ARTICLE 11
                 LAND POSSESSOR LIABILITY TO TRESPASSERS
  SECTION 350. LIABILITY OF LAND POSSESSOR TO TRESPASSER; EXCEPTIONS.
  S 350.  LIABILITY OF LAND POSSESSOR TO TRESPASSER;  EXCEPTIONS.  1.  A
POSSESSOR  OF LAND, INCLUDING AN OWNER, LESSEE, OR OTHER OCCUPANT, OR AN
AGENT OF SUCH PERSON OR ENTITY, OWES NO DUTY OF  CARE  TO  A  TRESPASSER
EXCEPT  TO  REFRAIN FROM HARMING THE TRESPASSER BY AN INTENTIONAL, WILL-
FUL, OR WANTON ACT. A LAND POSSESSOR MAY USE JUSTIFIABLE FORCE TO  REPEL
A  CRIMINAL  TRESPASSER  AS  PROVIDED BY SECTIONS 35.20 AND 35.25 OF THE
PENAL LAW.
  2. NOTWITHSTANDING SUBDIVISION ONE OF THIS  SECTION,  A  POSSESSOR  OF
LAND MAY BE SUBJECT TO LIABILITY FOR PHYSICAL INJURY OR DEATH TO A TRES-
PASSER IF:
  (A)  THE PHYSICAL INJURY OR DEATH IS TO A CHILD TRESPASSER AND RESULTS
FROM AN ARTIFICIAL CONDITION WHERE:
  (1) THE POSSESSOR KNEW OR HAD REASON TO KNOW THAT CHILDREN WERE LIKELY
TO TRESPASS AT THE LOCATION OF THE CONDITION;
  (2) THE CONDITION IS ONE THE POSSESSOR KNEW OR REASONABLY SHOULD  HAVE
KNOWN  INVOLVED  AN UNREASONABLE RISK OF DEATH OR SERIOUS BODILY HARM TO
SUCH CHILDREN;
  (3) THE INJURED CHILD DID NOT DISCOVER THE CONDITION  OR  REALIZE  THE
RISK  INVOLVED IN THE CONDITION OR COMING WITHIN THE AREA MADE DANGEROUS
BY IT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11335-01-1

S. 5091                             2

  (4) THE UTILITY TO THE POSSESSOR OF MAINTAINING THE CONDITION AND  THE
BURDEN  OF  ELIMINATING THE DANGER WERE SLIGHT AS COMPARED WITH THE RISK
TO THE CHILD INVOLVED; AND
  (5)  THE POSSESSOR FAILED TO EXERCISE REASONABLE CARE TO ELIMINATE THE
DANGER OR OTHERWISE PROTECT THE INJURED CHILD;
  (B) THE POSSESSOR KNEW OR SHOULD HAVE KNOWN THAT TRESPASSERS CONSTANT-
LY INTRUDED UPON THE LIMITED AREA OF  THE  POSSESSOR'S  LAND  WHERE  THE
TRESPASSER WAS HARMED, THE HARM RESULTED FROM AN ARTIFICIAL CONDITION ON
THE LAND, AND:
  (1)  THE POSSESSOR CREATED OR MAINTAINED THE CONDITION THAT CAUSED THE
INJURY;
  (2) THE POSSESSOR KNEW THAT THE CONDITION WAS LIKELY TO CAUSE DEATH OR
SERIOUS BODILY HARM TO TRESPASSERS;
  (3) THE POSSESSOR KNEW OR SHOULD HAVE KNOWN THAT THE CONDITION WAS  OF
SUCH A NATURE THAT TRESPASSERS WOULD NOT DISCOVER IT; AND
  (4) THE POSSESSOR FAILED TO EXERCISE ORDINARY CARE TO WARN TRESPASSERS
OF THE CONDITION AND THE RISK INVOLVED; OR
  (C) THE POSSESSOR KNEW OF THE TRESPASSER'S PRESENCE AND:
  (1)  FAILED  TO CARRY ON A DANGEROUS ACTIVITY ON THE LAND WITH REASON-
ABLE CARE FOR THE TRESPASSER'S SAFETY;
  (2) FAILED TO EXERCISE REASONABLE CARE TO WARN THE TRESPASSER ABOUT AN
ARTIFICIAL CONDITION MAINTAINED BY THE POSSESSOR THAT INVOLVED A RISK OF
DEATH OR SERIOUS BODILY INJURY AND WAS OF SUCH A NATURE THAT THE POSSES-
SOR HAD REASON TO BELIEVE THE TRESPASSER WOULD NOT DISCOVER  THE  CONDI-
TION OR REALIZE THE RISK INVOLVED; OR
  (3)  (I) KNEW OR HAD REASON TO KNOW THAT THE TRESPASSER WAS IN DANGER-
OUS PROXIMITY TO A MOVING FORCE IN  THE  POSSESSOR'S  IMMEDIATE  CONTROL
JUST BEFORE THE HARM OCCURRED; AND
  (II)  THE TRESPASSER WAS HARMED AS A RESULT OF THE POSSESSOR'S FAILURE
TO EXERCISE REASONABLE CARE SO AS TO PREVENT THE FORCE FROM HARMING  THE
TRESPASSER  OR  FAILED  TO EXERCISE REASONABLE CARE TO PROVIDE A WARNING
THAT WAS REASONABLY ADEQUATE TO ALLOW THE TRESPASSER TO AVOID THE HARM.
  3. FOR THE PURPOSES OF THIS SECTION: (A) "TRESPASSER" MEANS  A  PERSON
WHO  ENTERS ON THE PROPERTY OF ANOTHER WITHOUT PERMISSION AND WITHOUT AN
INVITATION, EXPRESS OR IMPLIED; AND (B) "CHILD" MEANS A PERSON UNDER THE
AGE OF EIGHTEEN YEARS.
  4. THIS SECTION DOES NOT CREATE  OR  INCREASE  THE  LIABILITY  OF  ANY
PERSON OR ENTITY.
  S 2. This act shall take effect immediately.

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Senate Bill S5091

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

co-Sponsors

2011-S5091 (ACTIVE) - Details

2011-S5091 (ACTIVE) - Summary

2011-S5091 (ACTIVE) - Sponsor Memo

2011-S5091 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5091

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Sponsored By

James L. Seward

Archive: Last Bill Status - In Senate Committee Judiciary Committee

co-Sponsors

Patty Ritchie

2011-S5091 (ACTIVE) - Details

2011-S5091 (ACTIVE) - Summary

2011-S5091 (ACTIVE) - Sponsor Memo

2011-S5091 (ACTIVE) - Bill Text download pdf

Comments