Property owner liability in case of trespassing (Chicago, IL)?
September 30, 2005 11:30 AM   Subscribe

Chicago, IL: Can a property owner be held liable if somone is injured while trespassing?

A member of my condo association would like to install a basketball hoop above her garage door. It is located in a completely private parking lot, and the only access to it by car or on foot is through our private driveway. If a kid were to walk on to our property and injur themselves while playing ball on it, is it possible our association could face any liability? We don't have any signs explicity stating "No Tresspassing", and the driveway does not have a gate. I live in Chicago.
posted by suitcase to Law & Government (9 answers total)
IANAL, but it could be considered an attractive nuisance.
posted by clarahamster at 11:36 AM on September 30, 2005

yes, sometimes
posted by caddis at 11:38 AM on September 30, 2005

Response by poster: Caddis - can you give me an example?
posted by suitcase at 11:42 AM on September 30, 2005

IANAL, but the "attractive nuisance" link provided by clarahamster includes the words "failed to use ordinary care in preventing such injury". Because of that, the concept probably does not apply to your situation.

The classic "attractive nuisance" case is a swimming pool that a young child might jump or fall into, and drown. The failure, in such a case, would be the lack of a fence, locked gate, etc. (Note the similar wording, "without realizing the risk by virtue of their youth", in the definition.)

If the pavement near the basketball hoop, was, for example, in poor condition, and it was easy to trip and fall, then yes, the situation could be considered to pose a risk. Or if the hoop were poorly anchored, or had a glass backboard that could shatter easily. But a normal hoop with good pavement below does not, in my opinion, constitute an attractive nuisance.

I do note that a "no trespassing sign" is not a valid defense for the (hypothetical) problem being discussed.
posted by WestCoaster at 11:59 AM on September 30, 2005

I'm sure a lawyer will come along and answer this, but from high school law I seem to recall that if you know people are trespassing and likely to trespass on your property then yes, you are liable for their safety on your property.

The example in the textbook was of dirtbikers who would ride in an empty hilly plot of land. The owner put up signs saying "no trespassing" and "no dirtbiking" but they did it anyway. They got hurt. They sued. The landowner was liable. Since he had put up "no dirtbiking" signs, it was obvious he knew that people were using his land.

But of course, how badly can a person injure themselves playing basketball and do you really think someone is going to bother to sue over a sprained ankle?

In other news, I hate John Stossel, with his strawmen and red herrings, but this might interest you. It was a 20/20 story a while back.
posted by duck at 12:04 PM on September 30, 2005

IAAL, licensed in IL - I would suggest if your condo association member wants a hoop that bad, that she install a backboard but take off the hoop part and keep it in her house until she wants to use it. Attractive nuisance comes in when you don't properly maintain the property when you know someone will trespass on it - having a no trespassing sign and neglecting the property does nothing.

If you notice children trespassing and playing with the hoop when they're not permitted, call the cops. A record of constantly reporting trespassers and actively attempting to stop unauthorized use will help should an unlikely lawsuit happen.

However, before relying completely on my advice, please seek counsel from one of the many competent PI attorneys in Chicago. They're the ones who will be able to answer your question since they're the ones that would be suing you.
posted by MeetMegan at 12:34 PM on September 30, 2005

IANAL, but I recall from my courses on real estate in college that if you allow people to go through or use a portion of your property for a period of time, you will be giving them a permanent easement and the right to walk through your driveway with or without your consent. I think that easement passes to future owners of your home, but I could be wrong.

You really should get some solid legal advice here. This sounds like something you should not do.
posted by lambchop1 at 5:24 PM on September 30, 2005

IAAL but not licensed in Illinois. I think that MeetMegan is overreacting by suggesting that the hoop be removed when not in use. A b-ball hoop by itself is not particularly hazard. Attractive nuisance, as suggested by others, simply does not apply.

In my state, a minimal degree of care is owed to a trespasser. You need only remedy known hazards, such as a hole in the lawn or in the driveway. In most states, falling on a concrete driveway is not actionable because it is an accepted risk of playing b-ball.

If she has homeowner's insurance, I wouldn't sweat it. If she does not, she should.
posted by megatherium at 6:38 PM on September 30, 2005

NAL. Still, I know a series of cases that are contenders for stella awards where thieves were able to sue for getting injured on the victim's property. There's more than one where an armed homeowner shot an intruder, they lived, sued, and won. It happens only occasionally, but is possible almost anywhere in the union.

One famous story (myth?) is of a thief trying to break in through a second-story window and falling through the roof onto the kitchen cutting-board, then suing for the injury.

Anecdotes aside, it boils down to one thing. If you document things, you're more likely to come out ok, but don't ever convince yourself that it couldn't happen.
posted by mystyk at 10:59 PM on September 30, 2005

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