Premises Liability – Duty of possessor of real property to adult trespassers

Posted on Jul 20 2012 8:38AM by Attorney, Jason A. Lee

The Tennessee legislature recently addressed the duty of a possessor of real property to adult and child trespassers.  Tennessee adopted Public Chapter No. 922 which was signed into law by Governor Bill Haslam on May 10, 2012.  This bill established T.C.A. § 29-34-208 and is effective on May 10, 2012, the date the bill was signed into law.  This post will address the portion of this new statute that pertains to the responsibility of a possessor of real property to adult trespassers.  A subsequent post will address responsibilities to child trespassers.  Adult and child trespassers are treated differently under Tennessee law.


The new T.C.A. § 29-34-208 (a) & (b) provides as follows: 


(a) As used in this section:

(1) “Possessor of real property” means the owner, lessee, renter, or other lawful occupant of real property; and

(2) “Trespasser” means a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass offense under §§ 39-14-405--39-14-407.

(b) A possessor of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing injury; provided, however, a possessor of real property may willfully, with negligence so gross as to amount to willfully, or intentionally cause injury to a trespasser or use force to prevent or terminate a trespass or criminal offense as permitted at common law, under §§ 39-11-611--39-11-616, and under § 29-34-201.


This statute provides that a possessor of real property only owes a duty to an adult trespasser to refrain from (1) willfully; (2) with negligence so gross as to amount to willfully; (2) intentionally; or (3) wantonly; causing injury to a trespasser.  It appears the intent of this statute is to essentially codify existing case law on the duty to trespassers.  The definition of a “possessor of real property” is broad and includes owners, renters and even a “lawful occupant of real property”.


Additionally, T.C.A. § 29-34-208 provides that the possessor of real property “may” use force to prevent or terminate a trespass or criminal offense as permitted at common law and under various statutes.  The statutes referenced pertain to self defense (T.C.A. § 39-11-611); defense of another (T.C.A. § 39-11-612); prevention of suicide (T.C.A. § 39-11-613); property protection (T.C.A. § 39-11-614); protection of a third party’s property (T.C.A. § 39-11-615); property protection by a device (T.C.A. § 39-11-616); and injury to a person committing a felony (T.C.A. § 29-34-201).  Therefore, an individual may use force to prevent or stop a trespasser on real property under these specific provisions in Tennessee law.


These statutes need to be considered whenever there is a Tennessee premises liability case that involves an adult trespasser who was injured.  Whenever an adult is injured while on the premises of another without permission this statute should be analyzed to determine if it effectively bars plaintiff’s claim.


TAGS: Negligence, 2012 Tennessee Legislation, Tennessee Premises Liability
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com