As Passed by the Senate

129th General Assembly Regular Session 2011-2012

S. B. No. 202

Senator Seitz 

Cosponsors: Senators Patton, Grendell, Eklund, LaRose, Bacon, Balderson, Beagle, Burke, Coley, Faber, Hite, Hughes, Jones, Jordan, Lehner, Manning, Niehaus, Schaffer, Widener 

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A BILL

To enact section 2305.402 of the Revised Code to

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specify the responsibility of a possessor of real

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property to a trespasser and the circumstances in

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which the possessor may be liable in a tort action

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for the death or injury of a trespasser.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2305.402 of the Revised Code be	6
enacted to read as follows:	7

Sec. 2305.402.  (A) As used in this section:

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(1) "Possessor of real property" means the owner, lessee,	9
renter, or other occupant of real property.	10

(2) "Tort action" means a civil action for damages for	11
injury, death, or loss to person other than a civil action for	12
damages for a breach of contract or another agreement between	13
persons.	14

(3) "Trespasser" means an individual who, without express or	15
implied authorization, invitation, or inducement, enters real	16
property purely for the individual's own purposes and convenience.	17

(4) "Child" means an individual under eighteen years of age.

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(B) The possessor of real property does not owe a duty of	19
care to a trespasser on the property except to refrain from	20
willful, wanton, or reckless conduct that is likely to cause	21
injury, death, or loss to the person of the trespasser.	22

(C) Notwithstanding division (B) of this section, the	23
possessor of real property is liable in damages to a trespasser on	24
the property or to any other person in a tort action for injury,	25
death, or loss to the person of the trespasser that allegedly is	26
caused by the possessor of the real property if, at the time the	27
injury, death, or loss allegedly is caused, the possessor knows,	28
or from facts within the possessor's knowledge should know or	29
believe, that the trespasser is in a position of peril on the	30
property, and the possessor of the property fails to exercise	31
ordinary care to avoid causing that injury, death, or loss.	32

(D)(1) Notwithstanding division (B) of this section, the	33
possessor of real property is liable in damages to a trespasser on	34
the property who is a child, to a parent, guardian, or custodian	35
of the child, or to any other person in a tort action for injury,	36
death, or loss to the person of the child that allegedly is caused	37
by an artificial condition on the real property if, at the time	38
the injury, death, or loss allegedly is caused, all of the	39
following apply:	40

(a) The place on the property where the artificial condition	41
exists is a place upon which the possessor of the property knows	42
or has reason to know that children are likely to trespass.	43

(b) The artificial condition is a condition that the	44
possessor of the property knows, has reason to know, realizes, or	45
should realize will involve an unreasonable risk of death or	46
serious injury to those children.	47

(c) Because of their youth, the children who are likely to	48
trespass on the property do not discover the artificial condition	49
on the property or do not realize the risk involved in	50
intermeddling with it or coming within the area made dangerous by	51
it.	52

(d) The utility to the possessor of the property of	53
maintaining the artificial condition and the burden of eliminating	54
the danger involved in maintaining the condition are slight in	55
comparison to the risk of injury, death, or loss to the person of	56
those children.	57

(e) The possessor of the property fails to exercise	58
reasonable care to eliminate the danger involved in maintaining	59
the artificial condition or to otherwise protect the children who	60
are likely to trespass on the property.	61

(2) Notwithstanding division (B) of this section, the	62
possessor of real property is liable in damages to an adult person	63
who trespasses on the property or to any other person in a tort	64
action for injury, death, or loss to the person of the adult that	65
allegedly is caused in an attempt by the adult person to rescue a	66
child who trespasses on the property under the conditions	67
specified in division (D)(1) of this section.	68

(E)(1) This section does not create a new cause of action or	69
substantive legal right against the possessor of real property.	70

(2) This section does not affect any civil liability under	71
another section of the Revised Code or the common law of this	72
state of a possessor of real property with respect to trespassers	73
under circumstances not covered by this section or with respect to	74
individuals other than trespassers, including, but not limited to,	75
civil liability to invitees or licensees on the property.	76

(3) This section does not affect any immunities from or	77
defenses to tort liability established by another section of the	78
Revised Code or available at common law to which a possessor of	79
real property may be entitled in connection with injury, death, or	80
loss to the person or property of a trespasser on the property,	81
including, but not limited to, self-defense or defense of third	82
persons.	83

(4) This section does not affect any criminal liability that	84
the possessor of real property may have for injury, death, or loss	85
to the person or property of a trespasser on the property.	86

(5) This section does not affect any immunities from or	87
defenses to civil liability established by another section of the	88
Revised Code or available at common law to which an individual	89
other than the possessor of real property may be entitled in	90
connection with injury, death, or loss to the person or property	91
of a trespasser on real property owned, leased, rented, or	92
occupied by another person, including, but not limited to,	93
self-defense or defense of third persons.	94