Let’s say, hypothetically, you are a burglar and decide to target a particular house owned by a family that will be away (overseas) for the Christmas holiday – i.e., for at least a week, without any indication that any of the family (let alone their 8 year-old son) is left Home Alone.
So you and your partner break in. Unfortunately for you, what initially seemed an easy, get-rich-quick plan quickly unravels, and you are injured in various horrific ways – including being shot, burned, blasted by feathers, falling, etc. – by traps set by said son. You are lucky to be alive.
Can you (successfully) sue for your injuries? By all accounts, the family/homeowner has money, so as to the “trifecta” of case evaluation – (1) liability, (2) damages, and (3) collectability – this lawsuit’s desirability turns on whether you can establish liability. This type of case falls broadly under the category of personal injury cases known as “Premises Liability.”
In a case well-known to U.S. law students, Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), the court considered “whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.” There, the plaintiff – while trespassing on defendants’ uninhabited property to steal antique fruit jars – triggered a “spring gun trap” which shot him in the leg, resulting in serious injuries. Plaintiff trespasser sued defendant property owner – and won; the court upheld a jury verdict in plaintiff’s favor. Despite this somewhat surprising result, Katko would be of limited use to Messrs.
However, Katko will be of limited help to you. Putting aside that the case was decided in Iowa in 1971, it is additionally factually distinguishable; i.e., the house in our facts was not “uninhabited”, such that the issue of the use of potentially deadly force to protect property alone is not raised.
Under current New York law, a plaintiff’s status – e.g., “invitee”, “licensee”, “trespasser” – no longer governs the analysis. Decades ago, New York’s highest court explained:
The liability of a landowner to one injured upon his property should be governed, not by the ancient and antiquated distinctions between trespassers, licensees, and invitees decisive under common law, but rather by the standard applicable to negligence cases generally, i.e., the ‘standard of reasonable care under the circumstances where by foreseeability shall be a measure of liability.
Scurti v City of New York, 40 N.Y.2d 433 (1976) (citing Basso v. Miller, 40 N.Y.2d 233 (1976)).
“The owner of property has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Matson v Dermer Management, No. 2018-10714, 506602/16, 2021 N.Y. Slip Op. 06842, 2021 WL 5816543 (N.Y.A.D. 2 Dept., Dec. 08, 2021) (internal quotation marks omitted).
Other case law, however, suggests that any suit by a burglar would be extraordinarily difficult to successfully prosecute. One court recently explained, for example:
Although landowners do have a general duty to the public to maintain their premises in a reasonably safe condition, this duty does not exist in the abstract. It takes form when someone enters the premises and is injured. Thus, the injured burglar is not entitled to benefit from his burglary because he cannot invoke a duty triggered by his unlawful entry. Thus, an injured lawbreaker’s claim for recovery will be precluded if (1) he engaged in a serious violation of the law involving hazardous activities which were not justified under the circumstances, (2) the injuries for which he seeks recovery are the direct result of that violation, and (3) he seeks to impose on the defendant a duty arising out of or triggered by his illegal act.
Estate of Gambino-Vasile v Town of Warwick, No. EF003997-2017, 62 Misc. 3d 646, 657, 89 N.Y.S.3d 577, 586, 2018 N.Y. Slip Op. 28392, 2018 WL 6576410 (Sup Ct, Dec. 11, 2018) (citations omitted; paragraphing altered).
Applying this rule to the facts of the above “hypothetical” prospective case is beyond the scope of this blog post.
That said, such a case would likely be an uphill battle.