State v. Ricky Shumake and Sandra Shumake, Individually and as Personal Representative of the Estate of Kayla Shumake

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0460

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The State of Texas and the

Texas Parks and Wildlife Department, Petitioners,

v.

Ricky Shumake and Sandra

Shumake, Individually and as Personal Representative of the Estate of Kayla

Shumake, Deceased,

Respondents

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of

Texas

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Argued April 12,

2005

Justice Medina delivered the opinion of

the Court, in which Chief Justice

Jefferson, Justice Hecht, Justice O’Neill, Justice Green , and Justice Johnson joined.

Justice Wainwright filed a

concurrence.

Justice Brister filed a dissent.

Justice Willet did not participate.

In this case

we consider the effect of the recreational use statute on a premises liability

claim against the state. Tex. Civ. Prac.

& Rem. Code §§ 75.001-.004. The Tort Claims Act waives the state’s

sovereign immunity for premises defects or injuries caused by “a condition or

use of . . . real property.” Tex. Civ.

Prac. & Rem. Code § 101.021. The State contends here, however, that

the recreational use statute effectively reinstates immunity for premises

liability claims arising on state-owned recreational properties. We disagree.

While the recreational use statute raises the burden of proof by classifying the

recreational user of state-owned property as a trespasser and requiring proof of

gross negligence, malicious intent, or bad faith, it does not reinstate

sovereign immunity but rather immunizes the state only to the extent of the

elevated standard. Although we do not agree in all respects with the court of

appeals’ opinion, we agree with its judgment and accordingly affirm. 131 S.W.3d

66 .

I

Blanco State

Park is a picnic, camping, and recreation area owned by the State of Texas and

operated by the Texas Parks and Wildlife Department. During a family visit to

the park, the Shumake’s nine-year-old daughter, Kayla, drowned while swimming

and tubing in the Blanco River. Kayla was allegedly sucked underwater by a

powerful undertow and trapped in a man-made culvert that diverted the water

under a nearby park road.

The Shumakes

later learned that only days before Kayla’s death three other park patrons had

encountered the same undertow and nearly drowned due to the same conditions.

These events were communicated to both a Parks Department employee and to the

Austin office of the Parks Department.

The Shumakes

sued the State of Texas, claiming, among other things, that the wrongful death

of their daughter was caused by a special or premises defect. They asserted that

when the river’s waters were high, the culvert was concealed, creating an

dangerous undertow. They further alleged that the Parks Department was aware of

this dangerous situation, having received reports of other recent near-drownings

involving the same area, but failed to make the culvert safer or warn of the

danger. The Shumakes finally alleged that the Parks Department’s failure to act

involved an extreme degree of risk, considering the probability and magnitude of

the potential harm to swimmers and thus had breached even the modest duty of

care owed to them as trespassers under the recreational use statute.

The Parks

Department filed a plea to the jurisdiction, seeking dismissal of the Shumakes’

claims for lack of subject matter jurisdiction, urging, among other things, that

the recreational use statute barred their premises defect claims by eliminating

the waiver of governmental immunity provided by the Tort Claims Act for such

claims. See Tex. Civ. Prac. &

Rem. Code §§ 75.001-.004. The trial court denied the plea, [1] and the Parks Department

took an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code §

51.014(a)(8).

The court of

appeals affirmed the trial court’s denial of the plea to the jurisdiction, [2] concluding that the

Shumakes had adequately pled a premises liability claim against the state within

the Tort Claims Act’s waiver and that the recreational use statute, although

reducing the duty of care, did not otherwise affect that waiver. 131 S.W.3d at

73-81. The Parks Department now urges this Court to take jurisdiction of the

interlocutory appeal because of a conflict of decisions among the courts of

appeals concerning application of the recreational use statute.

II

Before

reaching the merits, we must consider the issue of our own jurisdiction.

Generally, a court of appeals’ decision in an interlocutory appeal is final.

Tex. Gov’t Code § 22.225(b)(3).

When, however, a justice in the court of appeals dissents on a question of law

material to the decision in the interlocutory appeal, or when a prior decision

of another court of appeals conflicts with the court’s decision in the

interlocutory appeal, we have jurisdiction to resolve the disagreement or

conflict. Tex. Gov’t Code §§

22.001(a)(1), (2) and 22.225(c).

The court of

appeals’ decision in this case conflicts with those of four other courts of

appeals which have held that the recreational use statute does not permit a

premises defect claim against the state. See City of Fort Worth v.

Crockett , 142 S.W.3d 550 (Tex. App.—Fort Worth 2004, pet. denied); Gray

v. City of Galveston , 2003 WL 22908145 (Tex. App.—Houston [14th Dist.] Dec.

11, 2003, no pet.) (memo op.); City of Lubbock v. Rule , 68 S.W.3d 853

(Tex. App.—Amarillo 2002, no pet.); Flye v. City of Waco , 50 S.W.3d 645

(Tex. App.—Waco 2001, no pet.). Three other courts of appeals have concluded, as

did the court of appeals in this case, that such claims are available under the

statute. West v. City of Crandall , 139 S.W.3d 784 (Tex. App.—Dallas 2004,

no pet.); Tex. Parks & Wildlife Dep’t v. Morris , 129 S.W.3d 804 (Tex.

App.—Corpus Christi 2004, no pet.); City of Houston v. Cavazos , 811

S.W.2d 231 (Tex. App.—Houston [14th Dist.] 1991, writ dism’d). We thus have

jurisdiction to resolve the conflict in this interlocutory appeal. Tex. Gov’t Code § 22.001(a)(2).

III

Generally,

the State of Texas has sovereign immunity from suit unless waived by the

Legislature. Gen. Servs. Comm’n v. Little‑Tex Insulation Co. , 39 S.W.3d

591, 594 (Tex. 2001). We have construed that immunity to deprive the courts of

subject matter jurisdiction over suits against the state or its subdivisions.

Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex.

2004). The Legislature, however, has provided a limited waiver of the state’s

immunity from suit for certain tort claims under the Texas Tort Claims Act.

See Tex. Civ. Prac. & Rem.

Code §§ 101.002, 101.021, 101.025.

The Texas

Tort Claims Act includes, among other things, a limited waiver of the state’s

immunity from suits alleging personal injury or death caused by premises

defects. Id . §§ 101.021(2), 101.022. It further provides that in premises

defect cases, the state owes the claimant only the duty that a private person

owes to a licensee on private property. [3] Id . § 101.022 (a).

When injury or death results on state-owned, recreational land, however, the

recreational use statute limits the state’s duty even further to that owed by a

landowner to a trespasser. Id. § 75.002; see also id. §§

75.003(g) (“To the extent that this chapter limits the liability of a

governmental unit under circumstances in which the governmental unit would be

liable under [the Tort Claims Act], this chapter controls.”), 101.058

(same).

The Parks

Department contends that by classifying the entrant and user of state-owned

recreational property as a trespasser, the Legislature reinstated the immunity

for premises defect claims waived under the Tort Claims Act. The Department

reasons that because a landowner generally has no duty to make its property safe

for trespassers, or to warn them of dangerous conditions, it should follow that

a trespasser cannot complain about such things. The court of appeals, however,

disagreed.

The court

concluded that neither the trespasser standard nor the recreational use statute

operated to reinstate sovereign immunity for premises defect claims. 131 S.W.3d

at 80. The court reasoned that a landowner might have a duty to warn of, or make

safe, an unreasonably dangerous condition on its premises, if it were both aware

of the condition and the trespassers presence on its property. In so doing, the

court followed a distinction drawn in the Restatement between known and

unknown or naked trespassers. 131 S.W.3d at 77-80 (citing Restatement (Second) of Torts §§ 335,

337).

The

Department complains that the court of appeals’ reliance on the

Restatement has created new duties for landowners, not recognized at

common law nor contemplated by the Legislature when it enacted the recreational

use statute. The Department submits that the gross negligence standard,

expressed both in the statute and as part of the limited duty of care owed to a

trespasser, refers only to contemporaneous activities on the premises, and not

to the condition of the premises. See, e.g. , City of Lubbock , 68

S.W.3d at 859 (citing Flye , 50 S.W.3d at 648 )(duty owed a trespasser

“does not encompass injury arising from the condition of realty but only injury

arising from the activity or conduct of the occupier”); see also City of Fort

Worth, 142 S.W.3d at 554 (expressing disagreement with the court of appeals’

reasoning in Shumake ).

IV

A negligent

activity claim requires that the claimant’s injury result from a contemporaneous

activity itself rather than from a condition created on the premises by the

activity; whereas a premises defect claim is based on the property itself being

unsafe. See Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992). We

have rejected attempts to blur the distinction between these two claims. See

id. (declining “to eliminate all distinction between premises conditions and

negligent activities”). The Park Department’s argument here, however, does not

seek so much to blur the distinction between the two as it does to eliminate one

altogether. Determining whether a “trespasser” on state-owned recreational land

has a claim for injuries caused by the unsafe condition of the property requires

that we construe the statute along with the common law principles the statute

ostensibly incorporates.

A

When

construing a statute, we begin with its language. Our primary objective is to

determine the Legislature’s intent which, when possible, we discern from the

plain meaning of the words chosen. City of San Antonio v. City of Boerne ,

111 S.W.3d 22, 25 (Tex. 2003). If the statute is clear and unambiguous, we must

apply its words according to their common meaning without resort to rules of

construction or extrinsic aids. Fitzgerald v. Advanced Spine Fixation Sys.,

Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). We may consider other matters in

ascertaining legislative intent, including the objective of the law, its

history, and the consequences of a particular construction. See TEX.

GOV’T CODE § 311.023(1), (3), (5); Union Bankers Ins. Co. v. Shelton, 889

S.W.2d 278, 280 (Tex. 1994). Statutory construction is a question of law, and

our review is accordingly de novo. In re Forlenza , 140 S.W.3d 373, 376

(Tex. 2004).

The

recreational use statute limits not only the liability of the state, but also

the liability of others, who open their land for recreational purposes. Tex. Civ. Prac. & Rem. Code §§

75.001-.004. [4] The protection is extended

to encourage this type of use. The statute limits liability by providing that

the owner or occupier of real property does not assure that the premises are

safe for recreational purposes and does not assume responsibility for the

actions of those admitted to the property. Id . § 75.002(c)(1), (3). The

statute further creates a legal fiction, classifying the invited recreational

user of the property as a trespasser, and imposing that limited standard of care

upon the landowner. Id . § 75.002(c)(2). The statute, however, also

provides that the recreational user’s status as trespasser “shall not limit the

liability of an owner, lessee, or occupant of real property who has been grossly

negligent or has acted with malicious intent or in bad faith.” Id . §

75.002(d).

On its face,

section 75.002(d) makes no distinction between injuries caused by activities and

injuries caused by conditions. The Department argues, however, that even though

section 75.002(d) does not expressly limit the scope of a gross negligence

claim, the limitation is nevertheless implicit in the classification of the

recreational user as a trespasser under section 75.002(c)(2). The Department

submits that gross negligence must arise, if at all, from contemporaneous

activities on the property because a trespasser has no right to expect that the

property is safe or that the owner will warn about any dangerous conditions

known to it. As a general proposition this is correct, but construing trespasser

status as an absolute bar to a premises defect claim under the statute requires

closer examination.

B

A trespasser

at common law was one who entered upon property of another without any legal

right or invitation, express or implied. Texas‑Louisiana Power Co. v.

Webster , 91 S.W.2d 302, 306 (Tex. 1936). At common law, the landowner owed

no duty but to refrain from injuring the trespasser “willfully, wantonly, or

through gross negligence.” Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d

191, 193 (Tex. 1997); Burton Constr. & Shipbuilding Co. v. Broussard,

273 S.W.2d 598, 603 (Tex. 1954). The rule is based on the principle that a

landowner has no obligation to protect a trespasser in the wrongful use of the

landowner’s property: trespassers, who come uninvited for purposes of their own

“must take the premises as they find them; and if they fall into an unsuspected

danger, the loss is their own.” Tex. Cities Gas Co. v. Dickens , 168

S.W.2d 208, 210 (Tex. 1943). Thus, as a general proposition, a landowner is

entitled to the exclusive use of his property and “is not liable for injury to

trespassers caused by his failure to exercise reasonable care to put his land in

a safe condition for them, or to carry on his activities in a manner which does

not endanger them.” W. Page Keeton et

al. , Prosser and Keeton on the

Law of Torts § 58 at 393-94 (5th ed. 1984).

This rule is grounded in the common law’s

traditional regard for the rights of private ownership of property and the

assumption that landowners normally have no reason to expect trespassers or know

about them, and thus no liability for creating a dangerous condition on their

own property. Id . at 395. This general proposition is subject to a number

of qualifications, however. See id. at 395-99 (“Once the foregoing

general rule of nonliability has been stated, the rest of the law of trespassers

is a list of exceptions to it.”).

A number of

jurisdictions, motivated by more pressing considerations for human safety, have

balanced such considerations against the traditional rule favoring property

rights. As one authority has observed, if the landowner’s “burden is very

slight, and if the risk of harm to trespassers is correspondingly very great,

there may be good reason to hold the defendant liable.” Id. at 395. Under

this exception to the general rule, a landowner, who has actual knowledge that a

trespasser is coming and will encounter a known dangerous condition created by

the landowner, may owe a duty to warn or take some other action for the

trespasser’s protection. [5] This is also the

Restatement ’s position, adopted here by the court of appeals. 131 S.W.3d

at 77-78.

The Parks

Department argues, however, that before this case Texas law had not recognized

such a distinction, and thus the principle could not have been contemplated by

the Legislature when it enacted this statute. But whether Texas common law has,

or should, distinguish between different types of trespassers does not control

our decision in this statutory construction case. Neither this distinction nor

any other disagreement about the common law’s treatment of trespassers is

controlling here because the Legislature did not purport to adopt these common

law principles as its liability standard in section 75.002(d). In fact, it

intended something else entirely.

Section

75.002(d) quite plainly provides that the classification of a recreational user

as a trespasser was not intended to “limit the liability of [a landowner] who

has been grossly negligent or has acted with malicious intent or in bad faith.”

Tex. Civ. Prac. & Rem. Code §

75.002(d). Had the Legislature merely intended to adopt the trespasser standard,

this limitation would not have been necessary. The standard of section 75.002(d)

and the trespasser standard are therefore not the same.

This is

immediately apparent when the language of subsection (d) is compared to that

consistently used by Texas courts to describe the common law duty of care owed

to trespassers: to refrain from injuring the trespasser “willfully, wantonly or

through gross negligence. Tex. Dept. of Parks & Wildlife , 133 S.W.3d

at 225 ; City of Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex. 2002);

Tex. Util. Elec. Co., 947 S.W.2d at 193 ; Burton Constr. &

Shipbuilding Co., 273 S.W.2d at 603 . While the statute and the common law

both share a gross negligence component, construing them to mean the same thing

in each context would render subsection (d)’s reference to gross negligence

redundant. In construing a statute, we give effect to all its words and, if

possible, do not treat any statutory language as mere surplusage. Cont’l Cas.

Ins. Co. v. Functional Restoration Assocs. , 19 S.W.3d 393, 402 (Tex. 2000).

Thus, the Department’s argument concerning the limitations inherent in gross

negligence under the trespasser standard, subsection (c) of the statute, does

not inform our understanding of subsection (d).

The

recreational use statute does not define gross negligence; it merely provides

that trespasser status shall not limit the liability of a landowner “who has

been grossly negligent.” Tex. Civ. Prac.

& Rem. Code § 75.002(d). This language does not suggest that the

Legislature was only concerned about a landowner’s contemporaneous and active

conduct as the Department has argued. Nothing in the language indicates that the

Legislature intended that gross negligence should have such a special or limited

meaning. Because it is not defined otherwise, we conclude that the Legislature

must have intended for gross negligence to have its commonly-accepted legal

meaning.

Both this

Court and the Texas Legislature have defined gross negligence as an act or

omission involving subjective awareness of an extreme degree of risk, indicating

conscious indifference to the rights, safety, or welfare of others. Transp.

Ins. Co. v. Moriel , 879 S.W.2d 10, 21 (Tex. 1994); Missouri Pac. Ry. Co.

v. Shuford , 10 S.W. 408, 411 (Tex. 1888); Tex. Civ. Prac. & Rem. Code §

41.001(11). And we have previously applied this definition to the recreational

use statute. See Miranda , 133 S.W.3d at 225 (governmental unit waives

sovereign immunity under statute only if it is grossly negligent). Because gross

negligence may result from acts or omissions, and section 75.002(d) does not

distinguish between injuries caused by conditions and activities, we conclude

that section 75.002(d) permits a premises defect claim for gross negligence.

V

Recreational

use statutes have been enacted in nearly every state and uniformly provide that

landowners do not extend to recreational users any assurance that the property

is safe, nor confer upon the recreational user the legal status of an invitee or

licensee to whom an ordinary duty of care is owed. See 62 Am. Jur.2d Premises Liability §

118 (1990). These statutes, however, also generally retain liability for a

willful or malicious failure to guard or warn against a dangerous condition,

use, structure, or activity. Id . at 479. Because these statutes generally

immunize landowners from liability unless they are guilty of gross negligence,

willful or malicious conduct, it is important to understand under what

conditions a failure to guard or warn against a dangerous condition may be

considered grossly negligent, malicious or willful.

Contrary to

the Dissent’s suggestion, we do not hold, or even imply, that a landowner may be

grossly negligent for failing to warn of the inherent dangers of nature. ___

S.W.3d at ___ (Brister, J. dissenting) (suggesting that State must now warn that

“it is dangerous for a nine-year-old child to go tubing in a rushing river

during high water”). A landowner has no duty to warn or protect trespassers from

obvious defects or conditions. Thus, the owner may assume that the recreational

user needs no warning to appreciate the dangers of natural conditions, such as a

sheer cliff, a rushing river, or even a concealed rattlesnake. But a landowner

can be liable for gross negligence in creating a condition that a recreational

user would not reasonably expect to encounter on the property in the course of

the permitted use. See, e.g., Golding v. Ashley Cen. Irrigation

Co. , 902 P.2d 142, 145 (Utah 1995) (“If [] a landowner has knowledge of an

uncommon, hidden peril or danger on the land that is not inherent in the use to

which the land is put and that would not be reasonably discovered or avoided by

a trespasser, the landowner’s failure to warn or guard against such a danger

could amount to willful, wanton, or malicious inaction.”); City of Houston v.

Cavazos , 811 S.W.2d 231 (Tex. App.–Houston [14th Dist.] 1991, writ dism’d)

(knowledge that numerous people had drowned over a period of years at the same

artificially created, but hidden, hazard without any action by city to warn or

remedy the hazard was some evidence of gross negligence); see also Burnett v.

City of Adrian , 326 N.W.2d 810 (Mich. 1982) (reaching same conclusion under

Michigan’s recreational use statute); cf. Smither v. Tex. Utilities Elec.

Co. , 824 S.W.2d 693, 696 (Tex. App.–El Paso 1992, writ dism’d) (landowner’s

use of signs warning of dangerous waters created by company’s discharge canal

demonstrated conscious concern of landowner “for the safety even of

trespassers”). Gross negligence requires that the landowner be subjectively

aware of, and consciously indifferent to, an extreme risk of harm. See

Tex. Civ. Prac. & Rem. Code

§ 41.001(11); Louisiana Pacific Corp. v. Andrade, 19 S.W.3d 245,

246-47 (Tex. 1999) (“what separates ordinary negligence from gross negligence is

the defendant’s state of mind; in other words, the plaintiff must show that the

defendant knew about the peril, but his acts or omissions demonstrate that he

did not care”). This is consistent with our approach in Texas Department of

Parks and Wildlife v. Miranda that a premises defect claim might be brought

under the recreational use statute as long as there existed a factual dispute

regarding the landowner’s gross negligence with respect to the alleged defect.

133 S.W.3d at 230-31 . The recreational use statute limits the state’s liability

for premises defects, but its effect is not to reinstate the state’s immunity

from suit.

*

* *

We conclude

that the Shumakes’ pleadings were sufficient to state a premises liability claim

under the recreational use statute. The judgment of the court of appeals is

accordingly affirmed.

____________________________________

David M.

Medina

Justice

Opinion

delivered: June 23,

2006

[1] The trial court denied the plea to the jurisdiction,

concluding that the Shumakes had adequately alleged a cause of action under the

Tort Claims Act and that the recreational use statute was unconstitutional as

applied to them. The trial court further concluded that the Shumakes had

established a waiver of immunity for their alternative claims of nuisance and

attractive nuisance.

[2] The court of appeals disagreed with some of the trial

court’s reasons for denying the plea. The court of appeals concluded that the

Shumakes had not established the state’s waiver of immunity for claims of

nuisance and attractive nuisance. 131 S.W.3d at 72-73. The court also concluded

that the recreational use statute was not unconstitutional as applied to the

Shumakes. Id . at 81.

[3] This classification does not apply if the claimant pays

for the use of the premises or in cases of special defects. See Tex. Civ. Prac. & Rem. Code §

101.022.

[4] The part of the statute relevant to this case

provides:

(c) If an owner, lessee, or occupant of real property

other than agricultural land gives permission to another to enter the premises

for recreation, the owner, lessee, or occupant, by giving the permission, does

not:

1) assure that the premises are safe for that

purpose;

2) owe to the person to whom permission is granted a

greater degree of care than is owed to a trespasser on the premises;

or

3) . . .

(d) Subsection . . . (c) shall not limit the liability

of an owner, lessee, or occupant of real property who has been grossly negligent

or has acted with malicious intent or in bad faith.

Tex. Civ.

Prac. & Rem. Code §

75.002(c), (d).

[5] See, e.g., Copeland v. Pike Liberal Arts , 553

So.2d 100, 102 (Ala. 1989) (duty owed to trespasser is “not to wantonly or

intentionally injure him and to warn him of dangers known by [landowner]

after it was aware of danger to [trespasser]”); Parzych v

Branford , 136 A.2d 223, 225 (Conn. 1957) (“[I]n Connecticut a landowner is

not liable to a trespasser for failure to use care to safeguard him from injury

due to conditions on the land. However, when the presence of a trespasser

becomes known, a duty to use ordinary care to avoid injury then arises.”);

Wood v. Camp , 284 So. 2d 691, 693, 694 (Fla. 1973) (“The unwavering rule

as to a trespasser is that the property owner is under the duty only to avoid

willful and wanton harm to him and upon discovery of his presence to warn him of

known dangers not open to ordinary observation.”); Bremer v. Lake Erie &

W. R. Co ., 148 N.E. 862, 864 (Ill. 1925) (“The distinction is clearly made

that a defendant owes the duty of ordinary care to a trespasser known to be in

danger, to avoid injuring him. If by the exercise of ordinary care injury can be

avoided, the defendant is liable for the failure to use such care, but to a

trespasser, whose presence or whose danger is unknown, there is no duty to

exercise ordinary care, though there is a duty not to injure him willfully or

wantonly, or by such gross negligence as evidences willfulness.”); Reasoner v

Chicago, Rock Island & Pac. R.R. Co., 101 N.W.2d 739, 741 (Iowa 1960)

(“It is uniformly stated that the owner or holder of the premises owes no duty

to the unknown trespasser upon his property save that of not injuring him

willfully or wantonly, and to use such reasonable and ordinary care as the

circumstances demand, after his presence on the premises and his peril are

known, to avoid injuring him .”); Louisville & Nashville R.R. Co. v.

Vanderpool , 496 S.W.2d 349, 351 (Ky. 1973) (“[T]he only duty one owes a

trespasser (as was Vanderpool) is to exercise ordinary care to avoid injuring

him after his position of peril is discovered.”); Pridgen v. Boston Housing

Authority , 308 N.E.2d 467, 474 (Mass. 1974) (“[A]lthough an owner or

occupier of land owes a trespasser only the duty to refrain from wilful, wanton

or reckless conduct, where a trespasser is in a position of peril or in a

helpless situation and his presence becomes known, the owner then has a duty to

use reasonable care to avoid injuring him, or, as sometimes stated, a duty of

reasonable care in the circumstances.”); Hanson v. Bailey , 83 N.W. 2d

252, 257 (Minn. 1957) (Sections 333 and 335 of the Restatement of Torts

“correctly enunciate the applicable law”); Imre v Riegel Paper Corp., 132

A.2d 505, 508 (N.J. 1957) (“The standard of duty is the protection of others

against an unreasonable risk of harm; and the principle is operative in favor of

trespassers on land if the presence of the particular trespasser be discovered,

or the possessor of the land be aware of constant trespassing upon a particular

place or a limited area and the act is likely to cause death or serious bodily

harm.”); Maple v Tennessee Gas Transmission Co ., 201 N.E.2d 299, 300

(Ohio Ct. App. 1963) (“The duty not to injure a trespasser after he is known to

be upon the premises is the same duty as is owed in that respect to an

invitee.”); Lavallee v Pratt, 166 A.2d 195, 198 (Vt. 1960) (“The fact

that the plaintiff was a trespasser will not excuse the actor from the duty of

reasonable care for his safety if his presence was known or should reasonably

have been anticipated.”); Brown v. Carvill, 527 S.E.2d 149, 153-54 (W.Va.

1998) (“We have held that when a landowner creates a dangerous condition upon

his property that is likely to cause serious bodily injury or death, and the

landowner is aware that trespassers intrude into the area where the dangerous

condition exists, that the landowner must then exercise due care towards the

trespassers.”).