Wis JI-Civil 8025

TRESPASSER: DEFINITION

A person who enters or remains upon property in possession of another without express

or implied consent is a trespasser.1

Consent to be on the premises of another may be express or implied. There is an

express consent when the possessor2 expressly invites or authorizes another person to be

on his or her premises. There is an implied consent when the possessor, by his or her

conduct or his or her words, or both, by implication consents to such other person’s being

on the premises.

In determining whether an implied consent exists, you should look at all of the

circumstances then existing, including the acquiescence of the possessor, if any, in the

previous use of the premises by others (including the plaintiff); the customary use, if any,

of the premises by others (including the plaintiff); the apparent holding out of the premises,

if any, to a particular use by the public; and the general arrangement or design of the

premises. If, under all the existing circumstances, a reasonable person would conclude that

the possessor of the premises impliedly consented that the plaintiff be on the premises, then

there was consent.

Question ____ asks: At the time and place in question, was (plaintiff) a trespasser?

If by your answer to Question ____ you have found that the plaintiff, ________, was

a trespasser, it will then be for you to determine whether the defendant, ________, as the

(owner) (occupant possessor) of the premises, complied with those rules of law relating to

the duties owed by an owner-occupant to a trespasser.

A trespasser enters upon premises of another at his or her peril. The (owner) (occupant-possessor) is under no duty to anticipate a trespasser’s entry or to provide for a trespasser’s

safety. An (owner) (occupant possessor) may engage in any lawful work conducted in a

customary manner, upon his or her premises without incurring liability to a trespasser. This

is so even though some danger to trespassers reasonably may be anticipated due to the

nature of the work being performed or the manner in which it is being conducted. The

(owner’s) (occupant-possessor’s) only duty to a trespasser is to refrain from acts which

willfully, wantonly, or recklessly cause injury or death to trespassers. If (owner) (occupant-possessor) becomes aware, or in the exercise of ordinary care should have become aware,

of the presence of trespassers upon his or her premises, (he) (she) may not affirmatively

act or set any force in motion likely to cause injury or death to trespassers.

Willful actions are deliberate acts with intent to accomplish a result. Wanton or

reckless actions are those so unreasonable and dangerous that the actor knows or should

know that it is highly probable harm to another will result.3

Question ____ asks:

At or immediately before the (injury to) (death of) (plaintiff), were the actions of

(defendant) willful, wanton, or reckless?

If you determined that the actions of (defendant) were willful, wanton, or reckless,

then you must determine if the actions were a cause of (plaintiff)’s (injury)(death);

Question ____ asks:

Was the action of (defendant) a cause of (injury)(death) to (plaintiff)?

(NOTE: If the plaintiff is a child and his or her claim is based on “attractive nuisance,” the

following instruction should be given. For a suggested verdict, see Wis JI-Civil 8027.)

CHILD TRESPASSER

When a child trespasses upon the premises of another, the owner-occupant owes no

duty of care to a child injured or killed unless all of the following apply:

a) The possessor of real property maintained, or allowed to exist, an artificial

condition on the property that was inherently dangerous to children.

b) The possessor of real property knew or should have known that children trespassed

on the property.

c) The possessor of real property knew or should have known that the artificial

condition he or she maintained or allowed to exist was inherently dangerous to

children and involved an unreasonable risk of serious bodily harm or death to

children.

d) The injured or killed child, because of his or her youth or tender age, did not

discover the condition or realize the risk involved in entering onto the property or

in playing in close proximity to the inherently dangerous artificial condition.

e) The possessor of real property could have reasonably provided safeguards that

would have obviated the inherent danger without interfering with the purpose for

which the artificial condition was maintained or allowed to exist.

An artificial condition, as used in this instruction, includes a machine or device as well

as a land condition artificially created. The duty of the possessor is to exercise ordinary

care to eliminate dangers or otherwise protect children. Ordinary care is that degree of care

which the great mass of mankind ordinarily exercises under the same or similar

circumstances. The duty placed upon the possessor is to take such steps as a reasonable

person would take under the circumstances. The duty of the possessor does not apply to

children who know, or should know, of the danger involved in the condition.

In determining whether the (artificial condition), maintained on the land known to be

subject to trespass by children, involves an unreasonable risk to them, you should consider

and compare the recognizable risk to the children with the utility to the possessor of

maintaining the condition. In this regard, you should consider whether safeguards could

reasonably be provided which would obviate the danger without materially interfering with

the purpose for the artificial condition. You must further decide if the (artificial condition)

was a cause of the (injury to) (death of) (child).