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Healthy Forests, Today and Tomorrow
General Landowner Liability

(The following has been excerpted from this website describing Illinois Personal Injury Law.  The IFA does not intend for this to be taken as legal advice and can not vouch for the accuracy and currency of that website regarding Illinois Law.  If anyone needs definitive answers regarding these matters, the IFA suggests consulting an attorney.  The IFA does advise all Illinois landowners to be adequately covered by liability insurance and has arranged for the availability of supplementary liability insurance policies for its members.)

There are three classes of liability - negligence, intentional misconduct, and strict liability.

A person is negligent if he or she fails to act as a reasonable person would act in a similar situation.  A landowner may be found negligent by a court of law if a visitor is injured by some hazard on their land and if the landowner knew about the hazard and did not warn the visitor of the hazard.  Negligent behavior is almost never a criminal offense.  Still, civil penalties may be awarded.

Intentional misconduct occurs when someone, acting deliberately, does something that hurts another person or damages that person's property.  The law does not require that the person intend to cause the injury he or she actually inflicts, only that he or she acted deliberately or with complete indifference toward a person's own safety or the safety of others.  If a landowner knowingly constructs a hazardous situation on his land he could be found guilty of intentional misconduct if even a trespasser were injured by the hazard.  Intentional misconduct is often criminal behavior also.

The principle behind strict liability is that some activities are necessary but so dangerous that even a reasonable person cannot make them completely safe.  As a social policy, defendants are permitted to engage in certain activities but are held strictly liable for any injury resulting from the activity.  Felling a tree might be deemed such an activity - it is necessary for management of your forest but you are strictly liable for all damages resulting from the tree falling.

In general, a landowner is not liable for the injuries of a trespasser; however, the landowner must take reasonable care to protect the people he or she knows come on the property for legitimate purposes, such as letter carriers or tax assessors. 

A landowner may be responsible to children injured on his or her property if there is something on the property -- like a pond -- that is dangerous, the children are likely to exercise less care than adults, and the landowner fails to exercise sufficient care to prevent injury to a reasonable child.  Other states place a greater liability on landowners in this scenario through what is commonly called the "attractive nuisance doctrine."  Illinois does not recognize the attractive nuisance theory.

In a recent survey, Illinois landowners were most concerned about trespassing.  While trespassing is bothersome and, in some cases, damaging to your property, you should exercise restraint and common sense in trying to prevent it.  Certainly, you should post your property boundaries with signs declaring unwanted visitors unwelcome (see "Purple Paint Law" under Issues: Forest Health Alerts).  But you should NOT construct or leave hazards that may injure trespassers.  This is especially true if you are aware of routine trespassers - that would be intentional misconduct.

Burden of Proof

The burden of proof in a civil lawsuit is less strict than the proof required in a criminal case.  In a criminal case, the state must prove a person's guilt beyond a reasonable doubt.  The state is required to meet this high standard because a defendant's liberty, and possibly even life, are at stake.  The plaintiff in a personal injury lawsuit need only show that it is more probable than not that an injury was caused by the defendant's actions.  If the jury finds that the evidence even slightly favors the injured party, then it must find for the plaintiff.  The personal injury plaintiff need only meet this lower standard because the defendant's life and liberty are not at stake.

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