Real Estate Law Journal

Hawaii Property Owners Not Liable for Injury or Death to Trespassers

By Bruce D. Voss

Hawaii property owners are not liable for injury or death to trespassers who the owner could not reasonably anticipate would be on the property, the Hawaii Intermediate Court of Appeals has ruled.

The case, Winfrey v. GGP Ala Moana, involved a woman who died after apparently crawling through duct work onto the Ala Moana Center roof. The woman’s estate claimed the shopping center was liable because it owed the woman a “special duty of care.”

The Court noted that under Hawaii law, “an occupier of land has a duty to use reasonable for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual.” The key question here was whether the woman was “reasonably anticipated to be upon the premises.” The Court said no, because it was undisputed that the woman wasn’t authorized to be on the roof, and the rooftop was secured by a locked door and gate. Because the shopping center owed no duty to the woman, it was not liable for her death.

The case underscores the common sense safety precautions Hawaii property owners should be following anyway: properties should be completely fenced; gates should be locked and secured; holes in fences should be promptly repaired; signs should be posted; and any trespassers should be evicted immediately. If a property owner regularly follows such rules, it can credibly claim in a later lawsuit that it did not “reasonably anticipate” trespassers on the property.

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