Assembly Bill A7590

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

                                  7590

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              May 10, 2011
                               ___________

Introduced  by M. of A. MAGEE -- 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.
  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
              

A. 7590                             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.