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334Activities Highly Dangerous to Constant Trespassers..., Restatement (Second)...

Restatement (Second) of Torts 334 (1965)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Second) of Torts
Division 2. Negligence
Chapter 13. Liability for Condition and Use of Land
Topic 1. Liability of Possessors of Land to Persons on the Land
Title B. Liability of Possessors of Land to Trespassers
334 Activities Highly Dangerous to Constant Trespassers on Limited Area
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
A possessor of land who knows, or from facts within his knowledge should know, that
trespassers constantly intrude upon a limited area thereof, is subject to liability for
bodily harm there caused to them by his failure to carry on an activity involving a risk
of death or serious bodily harm with reasonable care for their safety.

See Reporter's Notes.

Comment:
a. The rule stated in this Section applies to determine the existence of liability for bodily harm
directly and immediately caused to persistent trespassers upon land by an activity carried on by its
possessor. The rule which determines the liability of a possessor of land for bodily harm caused
to such trespassers by the possessor's failure to warn them of dangerous conditions created on the
land by the earlier activities of the possessor or otherwise, is stated in 335.

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b. The cases thus far decided which have applied the rule stated in this Section have been those in
which the possessor's activity has involved a risk of death or serious bodily harm to the trespassers,
as in the case of running a railroad train, and serious bodily harm has in fact resulted. No reason
is apparent, however, for a limitation of the rule to activities involving such a risk, or to the
infliction of serious bodily harm. The rule would appear equally applicable to a case where harm is
threatened only to the trespasser's property, as where cattle are known habitually to cross a railroad
track, and the harm which results is only harm to such property.
c. Meaning of should know and has reason to know. The words should know as used in
the Restatement of this Subject imply that the person in question is not only required to draw a
correct conclusion from facts known to him, but also to ascertain the data necessary for drawing
such a conclusion by a reasonable attention to and appreciation of the surrounding circumstances
and, where adequate data cannot be thus obtained, by inspection or investigation. (See 12.) The
words from facts within his knowledge, which are used in this Section to qualify the phrase
should know, are inserted to indicate that the possessor is required only to draw reasonably
correct conclusions from data known to him, and is not required to exercise a reasonable attention
to his surroundings or to make any inspection or investigation in regard to them. The words should
know, thus qualified, differ from the words has reason to know in the following particulars:
the words has reason to know indicate that the person whose conduct is in question knows of
facts which make the existence of some legally important fact possible, and, therefore, require
him to look further into the matter before he assumes that it does not exist. The words from facts
within his knowledge should know, on the other hand, indicate merely that the facts which he
knows would without further investigation apprise a reasonable man of the existence of the legally
important fact. The words has reason to know differ from the words should know in that the
person whose conduct is in question in the first case is under no duty of inspection or investigation
until some fact known to him apprises him of the necessity therefor. On the other hand, the words
should know indicate that the person whose conduct is in question is under a general duty to be
attentive to his surroundings and to make investigations irrespective of whether any fact within
his knowledge indicates a peculiar necessity for his so doing. (See 12.)
d. In order that the possessor of land may be subject to liability under the rule stated in this
Section, it is necessary that he know, or from facts within his knowledge should know, that persons
constantly and persistently intrude upon some particular place within the land. It is not enough
that he know or have reason to know that persons persistently roam at large over his land.
e. Effect of signs prohibiting trespassers. Knowledge of the persistent trespasses or of facts which
should inform the possessor of them, is necessary to subject the possessor to liability under the
rule stated in this Section. Therefore, he is not subject to liability if he has taken steps which a

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reasonable man would believe to be effective in excluding trespassers or in putting an end to their
trespasses, unless he discovers that they are ineffective or has some peculiar reason to believe
that they will not be effective. Thus it is not enough that the possessor has posted notices to the
effect that trespass is not permitted or that trespassers will be prosecuted, if he knows or has
reason to know that such notices are disregarded either as a matter of general custom or at the
particular place. If the steps taken by the possessor, no matter how reasonable when taken, prove to
his knowledge ineffective, he is required to take into account the probable presence of trespassers
within such area and to conduct his activities with reasonable regard for their safety.
f. Effect of warnings of dangerous activities. Since a trespasser is not entitled or privileged to
enter the land, the possessor, in the absence of reason to know to the contrary, is entitled to expect
that a warning of his intention to carry on a dangerous activity will be sufficient to enable even
constant trespassers upon a limited area of his land to avoid harm. Therefore, reasonable care to
give adequate warning is sufficient to relieve the possessor from liability unless after he has or
should have become aware that a trespasser has not heard or does not intend to obey the warning,
he has the opportunity by the exercise of reasonable care to avoid injuring the trespasser.

Illustrations:
Illustrations:
1. The employees of a factory situated near the right of way of the A Railway Company
are, to the knowledge of the Company, in the habit of crossing its line at a point where
the entrance to the factor is opposite a public highway leading to the town where the
employees live. In the dusk of a winter afternoon a locomotive of the A Company, which
is driven over this point without a headlight and without ringing its bell or blowing its
whistle, runs over B, a workman in the factory, who is crossing the track on his way
home. A is subject to liability to B.
2. Under circumstances similar to those given in Illustration 1 except that the A Railway
Company has posted notices that persons trespassing upon their track at this point will
be prosecuted, C, a workman, employed in the factory, is similarly hurt. The A Railway
Company is subject to liability to C.
3. The A Railway Company has knowledge of the fact that the inhabitants of the town
of X have so persistently used a part of the right of way parallel to its track as a means of
reaching their homes that they have worn a beaten path beside the track. This path is at
a point where the tracks curve sharply, and it is so close to the tracks as to make its use
dangerous while trains are passing. B, one of the inhabitants of the town of X, is walking

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along the path on his way home from the station. A locomotive of the A Company is
driven around the curve at a high rate of speed in the same direction as that in which B
is walking, without a headlight and without ringing its bell. It strikes B. The A Railway
Company is subject to liability to B.

Reporter's Notes
The rule stated in this Section is supported by the following decisions: Southern R. Co. v.
Campbell, 309 F.2d 569 (5 Cir.1962); Thomas v. Southern R. Co., 92 F.2d 445 (5 Cir.1937);
Louisville & N. R. Co. v. Sullivan, 244 Ala. 485, 13 So.2d 877 (1943); Carlson v. Connecticut
Co., 94 Conn. 131, 108 A. 531, 8 A.L.R.569 (1919); Tice v. Central of Ga. R. Co., 25 Ga.App.
346, 103 S.E. 262 (1920); Bullard v. Southern R. Co., 116 Ga. 644, 43 S.E. 39 (1902); Clampit
v. Chicago, St. P. & K. C. R. Co., 84 Iowa 71, 50 N.W. 673 (1891); Louisville & N. R. Co. v.
McNary's Adm'r, 128 Ky. 408, 108 S.W. 898, 17 L.R.A.N.S. 224, 129 Am. St. Rep. 308 (1908);
Lyshak v. City of Detroit, 351 Mich. 230, 88 N.W.2d 596 (1957); Smith v. Boston & Maine R.
Co., 87 N.H. 246, 177 A. 729, 39 N.C.C.A. 1 (1935); Arrowood v. South Carolina & G.E.R. Co.,
126 N.C. 629, 36 S.E. 151 (1900); Cheslock v. Pittsburgh R. Co., 363 Pa. 157, 69 A.2d 108 (1949);
Missouri, K. & T.R. Co. v. Wolf, 76 Okla. 195, 184 P. 765 (1919); Carter v. Seaboard Air Line R.
Co., 114 S.C. 517, 104 S.E. 186 (1950); Knutson v. Oregon Short Line R. Co., 78 Utah 145, 2 P.2d
102 (1931); Johnson v. Lake Superior Terminal & Transfer Co., 86 Wis. 64, 56 N.W. 161 (1893).

Case Citations - by Jurisdiction

C.A.1
C.A.3
C.A.5
C.A.9
C.A.10
D.Ariz.
C.D.Ill.
E.D.Pa.
W.D.Wash.
Ariz.App.

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