A thief entered a house by crossing an electric fence. The fence was turned off when the thief came in, but it was turned on before he fled. When he tried to escape over the fence, he got shocked and suffered serious injuries. He sued the owner of the house.

The legal principle is an occupier of a premises owes a duty of care to all his invitees & visitors.

The thief was neither an invitee nor a visitor like a postman, delivery boy, etc. But the home owner was also liable. Why?

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    Can you link or cite to the case or news or is this hypothetical? If hypothetical, what country/state. Aug 27 '20 at 4:24
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    BTW it is bad form to ask a yes-no question in the title and then presuppose a specific answer in the body and ask why. The answer to the question "why" is, "it depends on where he lives".
    – user6726
    Aug 27 '20 at 5:09
  • @user6726 more than a question, I asked for a opinion. My question (more precisely a statement asking for opinion) was edited. That's why, you did not got that feel!
    – Sarah
    Aug 27 '20 at 5:58
  • @George White It's hypothetical(But I didn't make it myself, it was in the question paper) . Country-India.(But Indian law purely based on English law)
    – Sarah
    Aug 27 '20 at 6:03
  • I suggest looking at Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) for how the US might handle it in case the fence was set up to be rather lethal...
    – Trish
    Aug 27 '20 at 15:20


Occupiers Liability

The law recognises these categories of visitors:

  1. Contractural - people who pay to enter.
  2. Invitees - which are not people you invite despite the name; they are people whose visit will bring an economic benefit to the occupier, customers in a shop for example.
  3. Licensees - people who don't bring the occupier economic advantage, guests in your home for example. It also includes people who would be contractual visitors except they haven't been charged for their entrance.
  4. Entrants as of right - lawful users of facilities that are open to the public.
  5. Trespassers - Your hypothetical thief.

The occupier (generally not the owner) owes a duty of care to each category of visitors but their duty is lower the lower down the scale you go. However, that said, the practical distinctions between the categories are eroding as the duty ratchets up so that all are owed the same duty.

However, the duty to trespassers still remains less than the others. This is usually expressed as a duty to their "common humanity". Basically, if you don't go out of your way to create hazards, you should be ok.


However, occupiers liability is often not pursued and the case is brought in the tort of negligence instead (or as well). Indeed, in some jurisdictions (, , ) negligence has entirely supplanted occupiers liability.

There the duty is pretty much as originally laid down by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at 580:

You must take reasonable care to avoid acts and omissions which you can reasonably forsee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be, persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.

Is a trespasser your neighbour? You bet they are.

  • I wouldn't say a random trespasser and thief is "your neighbour", but it is reasonable to think that your actual neighbour could be injured by an electric fence and you can't do things that would likely injure your neighbour.
    – gnasher729
    Aug 27 '20 at 6:39
  • @gnasher729 neighbor for tort law means everyone who should be within your contemplation before you act - people know there are thieves and trespassers so you should think about them.
    – Dale M
    Aug 27 '20 at 8:04

No (some states, US: North and South Carolina, Michigan, Wisconsin, other states).

English common law often gives way in the US to statutory developments. South Carolina Code of Laws §15-82-10 holds that "A possessor of land owes no duty to a trespasser except to refrain from causing a wilful or wanton injury". An exception is made for "physical harm to children or a person with an intellectual disability who are trespassing thereon caused by an artificial condition upon the land" (with a number of further conditions). The same law was enacted in North Carolina, and in Michigan and Wisconsin. Since "common law" is no longer common to all Anglophone jurisdictions, it depends on the case law of the specific jurisdiction (primarily state, in the US). This position paper notes that the Restatement of the Law, Third (Tort) creates an exception to the earlier duty of care in the case of flagrant trespassers (I don't have a copy so I can't verify that). The statutory implementations do not depend on the trespsser being "flagrant", instead it hinges on mental competence.

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    And then there's Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), which handles a case of booby-trapping with deadly weapons.
    – Trish
    Aug 27 '20 at 15:18

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