While I was out of town for a weekend, someone broke into my house. They stole some things out of my house, but fortunately a neighbor had seen what was going on and called police. The police caught the burglar. I learned when I came back into town that the burglar had tripped and fallen on my property while trying to evade police. I am now facing a lawsuit for personal injuries. What are my rights?

In New York, a burglar trip and fall on your property does not automatically mean you are liable.

Notify Homeowner’s Insurance

The first thing you should do is notify your homeowner’s insurance about this lawsuit. The insurance company will hire lawyers to represent you in this lawsuit. But as explained in a prior post, the carrier can disclaim coverage in the event you do not give timely notice of the lawsuit. So you should notify your broker and carrier immediately. You should give the carrier a copy of the lawsuit.

Burglar Trip and Fall: What New York Law Says

So despite your feelings about the outrageous lawsuit against you, your insurance carrier will defend your interests. The law will protect your interests because it is likely the Court will dismiss the lawsuit.

Once there was a time in New York where the Courts had different rules of conduct for landowners depending on the status of the person. There were different rules if the person injured on your property was an invitee, licensee or trespasser. There was a much lower standard of conduct for a landowner if the injured party on your land was a trespasser. But all of that changed in 1976.

Status of Injured Party Does Not Matter

Landowners owe a duty of reasonable care under the circumstances to all people on their land, regardless of status. Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976); Scurti v New York, 40 NY2d 433, 387 NYS2d 55 (1976). Therefore, you owed a duty of reasonable care to burglar in your house. Even though this may sound like this is not favorable, ultimately you would prevail because the analysis does not stop at this point.

Foreseeability

The Court will evaluate the reasonableness of your conduct in light of whether the burglar’s presence or actions were reasonably to be foreseen. Peralta v Henriquez, 100 NY2d 139, 760 NYS2d 741 (2003); Farkas vy Cedarhurst Natural Food Shoppe, Inc., 41 NY2d 1041, 396 NYS2d 165 (1977). Thus the Court would look at if it was foreseeable that if a burglar breaks into your home, and if the police would come to your home in the middle of the burglary, and if the burglar would run away so they would not be caught by police, and in the process of fleeing, trips and falls on your property.

I am confident that no Court would say that these were foreseeable events.

Nevertheless, the burglar will try to point to some defect on your property. But at some point, common sense will prevail. Is it reasonable that the burglar tripped and fell on a specific defect? Was that alleged defect de minimis? Did the burglar even see what caused his fall, or did the police chase distract him? How did the burglar even see what caused the fall if it was dark and he was taken into custody because of the fall?

Child Trespassers

The more difficult case to defend would be with child trespassers. With respect to trespassing children (such as a construction site or swimming pool), the child’s age and the well known propensities of children to climb about and play are circumstances the Court would consider. Scurti v New York, 40 NY2d 433, 387 NYS2d 55, 354 NE2d 794 (1976); Barker v Parnossa, Inc., 39 NY2d 926, 386 NYS2d 576 (1976).

If the property owner had prior notice of incidents of children trespassing, then the Court would consider prior trespassing in assessing the foreseeability of the injured party’s presence and the reasonableness of the owner’s conduct.

However, an owner’s awareness that trespasses occurred in the past does not give rise to liability where the injury was caused by a superseding event. Boltax v Joy Day Camp, 67 NY2d 617, 499 NYS2d 660 (1986). (Adult injured trespasser knowingly dove head first into the shallow end of a pool.)

In your case, I do not believe the injured burglar will be able to prove a case against you.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.