Liability to trespassers

A Kentucky property owner is not liable to a trespasser for injuries suffered on the property unless the injuries were intentionally inflicted by the owner or someone acting for the owner (KRS 381.232). People who are on the land with permission are owed more.

Three kinds of visitors

• A trespasser enters without any right, lawful authority or invitation (KRS 381.231). The Kentucky Supreme Court reads “intentionally inflicted” to include willful, wanton or reckless conduct, such as setting a trap.
• A licensee is on the land with the owner’s consent, such as a social guest. In general the owner must warn of hidden dangers the owner knows about.
• An invitee, such as a customer, is there for the owner’s business. The owner must use reasonable care to keep the premises reasonably safe.

Children and “attractive nuisance”

The trespasser statute does not cover children who fall within the “attractive nuisance” doctrine. Under that court-made rule, an owner can be liable when a trespassing child is hurt by an artificial condition, meaning something built or placed on the land. The owner must know or have reason to know that children are likely to come onto the land and that the condition poses an unreasonable risk of death or serious injury. The child must be too young to recognize the danger, the burden of removing it must be slight compared with the risk, and the owner must have failed to use reasonable care.

There is no fixed age cutoff. In Hayes v. D.C.I. Properties, a 2018 case from Campbell County, the Supreme Court held that a 16-year-old who understood the risk of driving construction equipment was not protected.

Recreational use

An owner who lets people use land for recreation such as hunting, fishing, hiking or swimming owes them no duty to keep the land safe or to warn of dangers. The protection does not apply to a willful or malicious failure to guard or warn, or when the owner charges for entry (KRS 411.190).

Using force

A person may use physical force when he or she believes it is immediately necessary to prevent criminal trespass, burglary, robbery or theft. Deadly force to protect property is justified only in narrower cases: when the other person is trying to take the dwelling without a claim of right, is committing or attempting burglary, robbery or another felony involving force in the dwelling, or is committing or attempting arson, or in the circumstances covered by KRS 503.055 (KRS 503.080). That section presumes that a person who unlawfully and forcibly enters a dwelling or occupied vehicle intends an unlawful act involving force or violence. Simple trespass on land is not on the list.