CHARLESTON, W.Va. -- The West Virginia Senate unanimously passed a bill Tuesday that would ensure property owners face very limited liability from trespassers on their land.In general, common law states that property owners cannot be sued by trespassers unless they recklessly or willfully injure the trespasser. The bill would lock that common law into written legislation.The bill is in response to a recent publication of the non-binding but very influential American Law Institute. That publication, "Restatement of Torts, Third,'' dissolves some of the legal distinctions between trespassers and regular invitees. It would protect property owners against suit from "flagrant'' trespassers, but in many cases, other trespassers would have the same legal standing as regular invited guests.Judges and lawyers often rely on the Restatement of Torts to help them interpret common practices and nuances in the law.
Michael Greene, a professor at Wake Forest University School of Law, worked on the Restatement of Torts and said it is important to distinguish between different types of trespassers."Plainly, somebody who comes down your chimney to rob you is a trespasser,'' Greene said. "But then there are other kinds of trespassers. The kid who cuts across your yard to get to school is a trespasser.''A child who ran across property would, under current common law, probably be exempted from the West Virginia bill, but Greene gave another example of a trespasser who would likely not be protected."There's a park in Rhode Island that has a cliff-side walk where you can look out,'' Greene said. "And you're walking along this path. The park closes at 9 o'clock or 10 o'clock. There was somebody walking along that path and, because it was not maintained, he fell and was either killed or badly injured. He was a trespasser because the park was closed.''
Sen. Corey Palumbo, D-Kanawha, and the bill's lead sponsor, said that the bill is intended to make sure the law stays the same and judges aren't influenced by the Restatement of Torts."The purpose of the bill is to make sure there is no change,'' Palumbo said. "The current law in West Virginia is you owe a duty of care to invited guests but the duty to trespassers is much, much lower, much different. This bill is saying that's how we think it should stay.''George Christie, a professor at Duke University School of Law, said that the intentions of the Restatement of Torts are admirable, but because "flagrant trespassers'' is left undefined, there could be unintended consequences."I have doubts,'' Christie wrote, "as to whether the solution chosen will fulfill the expectations of its drafters."Since the Restatement of Torts was published, 11 states have responded by passing statutes codifying their existing common law. Many of those states worked off of model legislation proposed by the American Legislative Exchange Council.ALEC is an organization of legislators, businesses and foundations that proposes and promotes conservative and free-market policy ideas to state legislatures around the country.The language in the West Virginia bill is strikingly similar, almost identical in places, to a piece of model legislation written by ALEC.
Palumbo said he was not sure if they had worked with ALEC on the bill. Amy Anderson, an ALEC spokeswoman, said she had not been contacted by anyone in West Virginia.