2013 Regular Session
To: Judiciary, Division A
By: Senator(s) Harkins
AN ACT TO CREATE THE TRESPASSER RESPONSIBILITY ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE THAT A POSSESSOR OF LAND DOES NOT OWE A DUTY OF CARE TO A TRESPASSER AND IS NOT LIABLE FOR INJURY TO A TRESPASSER; TO PROVIDE EXCEPTIONS; TO PROVIDE FOR THE APPLICATION OF THE PROVISIONS OF THIS ACT TO COMMERCIAL OR OTHER REAL PROPERTY OWNERS; TO PROVIDE SEVERABILITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This act shall be known and may be cited as the "Trespasser Responsibility Act."
(2) The following word and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:
(a) "Child trespasser" means a trespasser who is less than sixteen (16) years of age or who has the level of mental development found in a person less than sixteen (16) years of age.
(b) "Possessor" means a person in lawful possession of land, including an owner, lessee, or other occupant, or a person acting on behalf of such a lawful possessor of land.
(c) "Trespasser" means a person who enters on the property of another without permission and without an invitation, express or implied.
(d) "Impel" means to encourage the action of another person or group of persons, with a degree of conscious decision making on the part of the one or ones impelled.
(3) (a) Except as provided in this section, a possessor of land does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.
(b) A possessor of land may be subject to liability for physical injury or death to a trespasser in the following situations:
(i) If the trespasser's bodily injury or death resulted from the possessor's willful or wanton conduct, or was intentionally caused by the possessor, except that a possessor may use reasonable force to repel a trespasser who has entered the land or a building with the intent to commit a crime.
(ii) The physical injury or death occurred to a child trespasser and that resulted from an artificial condition on the land if all of the following apply:
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 serious bodily injury or death to child trespassers.
3. The injured child did not discover the condition or realize the risk involved in the condition or in coming within the area made dangerous by it.
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.
5. The possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.
(iii) If the possessor discovered the trespasser in a position of peril or helplessness on the property and failed to exercise ordinary care not to injure the trespasser.
(4) (a) No person who owns, leases, operates, maintains or manages commercial or other real property in the State of Mississippi and no director, officer, employee, agent or independent contractor acting on behalf of any of the listed persons shall be civilly liable to any business invitee or licensee as the result of the acts of negligence or gross negligence or the willful, wanton or intentional conduct of any third party who is not a director, officer, employee, or agent of the person who owns, leases, operates, maintains, or manages such commercial or other real property unless the injured party can prove by clear and convincing evidence that:
(i) The conduct of the third party occurred on the property;
(ii) The conduct of the person who owns, leases, operates, maintains, or manages the property impelled the conduct of the third party; and
(iii) The third party's conduct proximately caused the economic and noneconomic damages suffered by the business invitee or licensee.
(b) Proof related to an alleged atmosphere of violence that is based on evidence of putative or actual criminal conduct that takes place anywhere other than upon the commercial or other real property where the acts of the third party occurred is inadmissible to establish proof of civil liability for compensatory or exemplary damages.
(c) Proof related to the violent nature of the putative third party whose act of negligence or gross negligence or willful, wanton or intentional conduct proximately caused any damages, whether economic or nonecomonic, suffered by the business invitee or licensee is inadmissible to establish proof of civil liability or compensatory or exemplary damages.
SECTION 2. This act shall take effect and be in force from and after July 1, 2013.