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Scenario

Arial photo of subject property

The image above is an aerial view of one of our vacant estates. The area in red depicts our property while the blue dots indicate a path that pedestrians often take to avoid the dangers of X 1-3.

  • X1 is a telephone pole right on the corner of our property and against a steep 3-4ft hillside. Industrial trucks attempting to make the sharp inside turn have (on multiple occasions) hit the telephone pole. It's also worth noting that consumer vehicles tend to drive too fast making that inside turn.
  • X2 is about 2ft between the side of the structure and the roadway.
  • X3 marks about how wide of a swing industrial trucks have while attempting to make that turn.

Question

For years, we've not prevented pedestrians from walking through the yard (without permission) to avoid the dangers of walking along the road around the tight corner of the house. However, with the property being vacant and having recently been broken into... we're needing to add some security cameras that we can monitor remotely and are also questioning liability concerns if people were to injure themselves while walking through our property.

We've considered 'No Trespassing' signs, but at the same time we don't wish to make the pedestrians walk the more dangerous path. So...

  1. Do 'No Trespassing' signs protect us (the private property owners) from liability if individuals were to get injured on our property?
  2. If yes, would an 'Enter at Your Own Risk' or similar sign provide the private property owners with the same liability protections?
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  • The additional issue presented is what you have to do to prevent a legally enforceable prescriptive easement in favor of the general public from burdening your property.
    – ohwilleke
    Nov 1 '21 at 17:11
  • You should probably look into local government for a fixing road signs to create safe vehicle and pedestrian traffic. Especially since the safest public route would be to walk on the other side of the street on both streets (They appear to have much more reasonable space).
    – hszmv
    Nov 1 '21 at 18:52
  • Also can we see the direction of the flow of traffic on both roads. The with X2 and X3 look very narrow and may be one way. Additionally, if the left hand turn is prone to knocking over utilities, it might be wise to get local government to put a "no left turn sign" as the constant repair to infrastructure would be frustrating to property owners as well as taxing on someone's budget.
    – hszmv
    Nov 1 '21 at 19:00
  • hszmv, both roads are a two-way street with a single lane going each way. It's usually large trucks coming from the North going South-West, so a left turn when there are issues. The city and even state government are aware of the situation as both roads are state roads... the state has approached us multiple times over the last 2-3 decades interested in buying the property or at least the edge of the property and the extension on the southern part of the house. They always come back saying it was appraised too high and they don't have the funds or they have other priorities. Nov 1 '21 at 20:18
  • Sorry, a right-hand** turn... End of the day, I can't rely on the city or state government to do anything about it. They won't prevent industrial trucks from using that turn because they really don't want the trucks to travel the alternate route. I don't care if pedestrians walk through the yard... We do maintain the yard, we cut the grass weekly, and there aren't any obvious hazards that I'm aware of... but if a kid flips their ATV or someone twists their ankle on uneven ground and breaks their leg, I don't want to be held liable. Just not sure how to achieve that. Nov 1 '21 at 20:22
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Overview

This is a somewhat complex issue. The presence of "No Trespassing" signs would make anyone who enters the property without a specific invitation a trespasser. So would the presence of a fence, even if there was a closed but unlocked gate. An "Enter at your own risk" sign probably would not make such people legally trespassers.

In West Virginia, a landowner or lessee or other lawful occupant owes a duty of "reasonable care" to invitees and other non-trespassers. No such duty is owed to trespassers. However, the owner or lawful occupant is expected to avoid dangerous conditions and reckless hazards, as well as intentional causes of harm (such as booby-traps). If through recklessness or serious negligance a dangerous condition exists and a person, even a trespasser, is injured or killed because of such a condition, the owner or lawful occupant is likely to be liable. However, if the danger is "open and obvious" or is as well known to the injured person as to the owner or occupant, there is no liability. A warning sign might make a danger "open and obvious".

I do not see that video cameras will be relevant to the matter at all. Cameras do not warn a pedestrian not to enter, nor do they warn of any danger, nor do they prevent a pedestrian from being injured. They may help in detecting or even preventing crime, but will not affect liability for injury to a pedestrian.

Sources

West Virginia Code Code Sections

§61-3B-3. (Trespass on property other than structure or conveyance.) of the West Virginia Code provides that:

(a) It is an unlawful trespass for any person to knowingly, and without being authorized, licensed or invited, to enter or remain on any property, other than a structure or conveyance, as to which notice against entering or remaining is either given by actual communication to such person or by posting, fencing or cultivation.

§55-7-27. (Liability of possessor of real property for harm to a trespasser.)

(a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to a trespasser except in those circumstances where a common-law right-of-action existed as of the effective date of this section, including the duty to refrain from willfully or wantonly causing the trespasser injury.

(b) A possessor of real property may use justifiable force to repel a criminal trespasser as provided by section twenty-two of this article.

(c) This section does not increase the liability of any possessor of real property and does not affect any immunities from or defenses to liability established by another section of this code or available at common law to which a possessor of real property may be entitled.

(d) The Legislature intends to codify and preserve the common law in West Virginia on the duties owed to trespassers by possessors of real property as of the effective date of this section.

Articles from Law Firms

The article "West Virginia Legislature reinstitutes “open and obvious” doctrine" from the law firm Farmer, Cline, & Campbell discusses how the case of Hersch v. E-T Enterprises, Ltd. P’ship. in which a WVa court abolished the "open and obvious" except to liability, imposing dameages for an "open and obvious" hazard, specifically an open stair without guardrails. The legislature then amended §55-7-27. (a) to restore the exception.

The article also reads:

West Virginia state law requires property owners remove hazards from their property to reduce the risk of these injuries. The expectation is dependent on the type of person that is on the property. Previously, visitors were broken into one of four categories: invitee, licensee, social guest or trespasser. The duty of care owed to the visitor depended on the category under which the visitor qualified. Today, there are only two categories: trespasser and non-trespasser. The West Virginia Supreme Court, in Mallet v. Pickens, abolished the four categories mentioned above, and held that “landowners or possessors now owe any non-trespassing entrant a duty of reasonable care under the circumstances.”

The article "Property owners may be liable for injuries to trespassers" from the law firm Farmer, Cline, & Campbell reads:

West Virginia homeowners are not obligated to protect those who trespass upon their property. However, they should be aware that they cannot willfully cause injury to any who do trespass. This law can become an issue for homeowners with frequent trespassers as they may find themselves liable for injuries any people, even the uninvited ones, sustain if their properties are left in an unsafe condition.

For example, homeowners and landowners could potentially face lawsuits if they purposefully made their properties unsafe. They may also be held liable if the condition of their properties could cause serious bodily harm or death. Further, landowners can also potentially face legal consequences if they fail to warn potential trespassers that there are hazards on their properties.

The article "Determining Duty in West Virginia Premises Liability Cases" from Colombo Law reads:

Most states use three categories to determine whether a duty is owed to individuals who enter the property of another. These three categories are business invitee, licensee, and trespasser. In the past, West Virginia was one of the many states that followed this standard. However, in 1999 West Virginia abolished and replaced the three specific classifications with a new, more general standard of determining whether the individual is a trespasser or a nnon-trespasser

  • Trespasser. A trespasser is an individual who enters the property of another without the permission of a landowner. An individual will be deemed a trespasser if they do not have either express or implied permission from the owner. In West Virginia, the courts offer little protection to those who are trespassers. As a trespasser, a landowner must only refrain from intentional or reckless conduct.
  • Non-Trespassers. Contrary to trespassers, landowners owe a duty to anyone that is permitted to be on the property. If an individual enters private property with the express or implied permission of a landowner, the landowner must ensure that the premises are reasonably safe for those on the premises. To ensure you are meeting the standard of care, the landowner must inspect the premises to determine whether there are any dangerous conditions present on the property and repair and/or warn individuals of the danger.

Premises liability is the legal premise for which landowners are responsible for harm caused by unsafe conditions existing on the landowner’s premises. Premises liability is a broad concept that may be raised for a variety of harms present. One main reason for personal injury actions stemming from premises liability include slip and fall accidents as a result of:

  • Slippery floors
  • Uneven sidewalks or pavement
  • Objects protruding from carpeting , floorboards, or store shelves
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  • The cameras were more for security due to recent break-ins and unrelated to the questions at hand. I merely presented the information to further explain the situation at hand, not to suggest that they would convey any specific message. Nov 1 '21 at 18:23
  • I don't wish to tell people they can't walk through if they feel it's a safer alternative than the street, but at the same time I don't wish to be liable if they step on uneven ground and twist their ankle or break a leg. The property is reasonably safe, I'd feel comfortable running aimlessly around the yard. That said, accidents do happen... I've seen bikes, go-karts, and ATVs ride through. Rather they're being reckless or just happen to step on uneven ground, I don't want to be held liable. Essentially, "Enter at Your Own Risk", but without implying there is any immediate risk. Nov 1 '21 at 18:26
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    @user1960364 It is the choice of the property owner what action to take, and I cannot advise what should be done. An "Enter at Your Own Risk", sign is probably an implicit invitation to enter, and so is an assumption of a "duty of reasonable care". The owner could be liable, although such a sign might help, particularly in a marginal case. But it is not an automatic guarantee of no liability. For additional specifics, I am afraid yo9u would need to consult an actual lawyer. Nov 1 '21 at 18:41
  • Honestly a fence with no sign around the property line would be the best. The fence implies a boundary that would establish no liability if someone were to trespass (and you'd be still liable to those you invited to take the short cut. As I mentioned before, it's probably best to get a local government official to assist with a better solution as signage telling people to walk on the other side of both streets seems like the safest public route.
    – hszmv
    Nov 1 '21 at 18:57
  • @hszmv Even a fence, plus "no trespassing" signs, does not eliminate all liability, although it would reduce potential liability significantly. A recklessly or wantonly unsafe coinditioin may give even an admitted trespasser grounds for a successful suit. Note that a fence with a gate that anyone can open is still enough under WV law to make an entreat legally a trespasser, with reduced liability, according to my sources quoted in the answer. Nov 1 '21 at 19:07

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