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69 » VISIT US ONLINE @ DSNEWS.COM MICHIGAN MICHIGAN CODIFICATION OF CIVIL TRESPASS LIABILITY TAKES HOLD By: Matt eunick, Trott & Trott On June 26, 2014, the Michigan legislature enacted the Trespass Liability Act, Public Acts of 2014, Act. No. 226, all designed to codify the liability of possessors of land for injuries to trespassers. Whereas prior state statutes had criminalized the unlawful entry on another per- son's property without permission, civil liability for injuries to trespassers, like other premises liability claims (i.e., the liability of a landowner for injuries occurring on real property), were always governed by common law (e.g. case law or judge made law) in Michigan. e impetus for Michigan's codification of civil liability for injuries to trespassers was owing to the desire to preserve the status quo and not increase the liability of landowners in relation to trespassers. Indeed, the Act notes in Sec. 3.(3) that, "is section does not increase the liability of a possessor of land and does not affect any immunity from or defenses to civil liability established or available under the statutes or common law of this state to which a possessor of land is entitled." us, through the codifica- tion process, property owners would obtain a greater degree of certainty of what is expected of them in relation to trespassers and future changes would be done legislatively, as opposed to judicially. As noted in the Michigan House's Legisla- tive Analysis (House Bill 5335), Michigan's codification process was also prompted, in part, as a reaction to the treatment of premises liability in the latest edition of the influential, but not precedential, Restatement of Torts (3rd), released in 2012, which had departed from the 1965 Restatement (2nd), by vastly expanding the duty of landowners to exercise reasonable care in making premises safe to all persons enter- ing upon the land, even trespassers. Michigan's efforts to codify trespass liability appears to be a trend, as the Michigan House had noted that at least 13 states passed legislation…to prevent their states from adopting the expanded philosophy of the Restatement (3rd). us, the Michigan Act broadly notes that the possessor of an interest in land (e.g., a fee, reversionary, or easement interest), such as an owner, lessee, or other lawful tenant/occu- pant, owes no duty of care and is not liable to a trespasser for physical harm caused by the pos- sessor's failure to exercise reasonable care to put the land in a condition reasonably safe for the trespasser or to carry on activities on the land so as not to endanger the trespasser. However, a possessor of land may be subject to liability for physical injury or death to a tres- passer if any of the following apply: » e possessor injured the trespasser by willful and wanton misconduct. » e possessor was aware of the trespasser's presence on the land (or should have known in the exercise of ordinary care) and failed to use ordinary care to prevent injury arising from active negligence. » e possessor knew (or should have known from facts within his or her knowledge) that trespassers constantly intrude on a limited area of the land and the trespasser was harmed because the possessor failed to use reasonable care for the trespasser's safety when engaging in an activity involving a risk of death or serious bodily harm. » e trespasser is a child injured by an artificial condition on the land and all of the following apply: • e possessor knew or had reason to know that a child would be likely to trespass on the place where the condition existed. • e possessor knew or had reason to know of the condition and realized (or should have realized) that the condition would involve an unreasonable risk of death or serious bodily harm to the child. • Because of the child's youth, the child did not discover the condition or realize the risk involved in trespassing in the area of that dangerous condition. • e utility (or benefit) to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child. • e possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child. e codification of the Michigan Trespass Liability Act was supported by a broad array of business and corporate interests (e.g. the National Federation of Independent Business; the Michigan Association of Insurance Agents; Consumers Energy; the Michigan Railroads Association; DTE Energy; the Michigan Asso- ciation of Realtors; the Apartments Association of Michigan; and the Michigan Chamber of Commerce, to name but a few), in order to con- trol, or limit, the expansion of the duty of care owed to make premises safe to those who enter upon the land of another. is statute should have the intended effect of preserving the status quo, if not limiting the ability of unwanted trespassers to bring lawsuits against Michigan landowners.

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