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Are You Liable to a Trespasser Who Was Injured On Your Construction Site?

Jeremy A. Chevres | September 16, 2022

Are you liable to a trespasser who was injured on your construction site? As always, it depends. First, you have to determine whether the individual was indeed trespassing. A trespasser “enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.”  Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972). Then, you analyze whether you breached the duty owed to a trespasser: “to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.”  Arp v. Waterway East Ass’n, Inc. et al., 217 So. 3d 117 (Fla. 4th DCA 2017) (quoting Nolan v. Roberts, 383 So. 2d 945, 946 (Fla. 4th DCA 1980)); see also Fla. Stat. § 768.075(3)(b). An act is willful when it is voluntary and intentional, and a voluntary act becomes willful “only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong.”  Black's Law Dictionary (11th ed. 2019). An act is wanton when it is “unreasonably or maliciously risking harm while being utterly indifferent to the consequences.”  Id. Please feel free to reach out to Kubicki Draper’s Construction Practice Group for a detailed case-specific analysis of your worksite injury liability claims.

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