S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4769
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced  by  M. of A. MAGEE, SCHIMMINGER -- read once and referred 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.
   § 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.
              

                                                            LBD08802-01-7

 A. 4769                             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.
   § 2. This act shall take effect immediately.