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I own a few acres of land in a community garden were I plan to grow some of the hottest chilis in the world. The community garden is clearly marked as private property and fenced in. However the gates are not locked and can be opened by anyone. As a matter of fact the community garden plots are near a popular hiking and jogging track and it is a well known "secret" that random people regularly walk through the gardens - which is not a big deal. However it is sadly also known that a good amount of people seem to think we dont mind if you pick an apple or two, some strawberries or whatever - this is a whole different topic.

The chilis I am growing - in terms of hotness - can cause damage to ones health (sensitive body parts like eyes, heart attacks, ...) if handled improperly.

According to the description above it seems to me that the trespassers that are just walking through can be considered innocent without criminal intent and in that role will also not be affected by the chilis. As far as I know it is also not an "attractive nuisance" for animals (chili plants evolved to be a literal unattractive nuisance) or children (fruits, vegetables and so on are not a primary target) running around unaccompanied. Which leaves me with the people stealing fruits from my garden. Is picking fruits/vegetables from private property already enough to be considered criminal intent which would mean I am not liable?

While my location is Switzerland I think this might also be interesting for other countries. Therefore some common law or US interpration would also be interesting to hear.

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  • Since all us community gardeners are part of a non-profit organization I am also going to get their opinions as well which is probably more abundant with regards to Swiss law. – Yanick Salzmann Jan 18 at 20:42
  • I assume some common law or US law interpretations might even be interesting as well for other people. – Yanick Salzmann Jan 18 at 20:42
  • To an otherwise reasonable non-horticultualist, do these things look similar to a small red (or green or yellow) bell pepper? I think you might call what I am describing capsicums in English-speaking Europe. – Damila Jan 19 at 4:11
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At common law and in the majority rule in U.S. law, the obligation one owes to a trespasser or thief is to refrain from setting deadly traps.

In this case, where the product is not inherently dangerous, it probably wouldn't count as a deadly trap, but best practices would be to post a conspicuous sign along the lines of "warning: consumption of these peppers could cause deadly health complications" near the peppers and to document (e.g. with a dated photograph) that this was done.

The bigger liability would not be to a trespasser, but to someone in the next plot over which accidentally mistakes a ghost pepper for the cool Bell pepper that they put in their own plot, especially if the harm if foreseeable because the person planting the hot pepper knows that a frail elderly person with poor vision maintains the next plot over and grows similar looking peppers.

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    would it not be better to leave off the word "deadly" from the health complications? (I would have thought that if something did go wrong the word deadly could be used against the grower/owner for not taking adequate precautions) – davidgo Jan 19 at 2:34
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    @davidgo if something is deadly, isn't failing to label it as such the very definition of "inadequate precautions"? – phoog Jan 19 at 4:27
  • @phoog I'm not at all certain that even the strongest chili peppers are , practically speaking - deadly - Labeling on products containing nuts/peanuts don't claim to be deadly and I'd argue this is (albeit imperfectly) analogous. Apparently you need something like 3lb of ghost chili's to kill you. – davidgo Jan 19 at 6:59
  • @davidgo Giving a warning that is too strong virtually never results in liability. – ohwilleke Jan 19 at 20:30
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    I was wondering about a warning as well, but discussing it with a few friends we all agreed - putting aside the fact that picking the fruit would be stealing - a warning would encourage us even more to pick them. I decided that marking them as "not edible" essentially conveys the same message without beeing overly inviting :) – Yanick Salzmann Jan 24 at 11:06

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