Trespassers at mines

By |  November 2, 2015

Two teenagers swim in an abandoned quarry. A property owner who leases his land to a mine operator enters without authorization to observe operations. Three youngsters wander onto cement plant property and get into a hot clinker pile. Along an ocean shore, strollers climb a pile of dredged sand.

The teenagers drown. The lessor curious about mining is killed by a blast. The youngsters are severely burned by the hot clinker. The beach walkers die when the sand pile collapses on them.

The swimmers were trespassing. The curious lessor was trespassing. The youngsters were trespassing. The beach walkers were trespassing.

Personal consequences

A death close to home is an agonizing event. Even if a mine operator has no legal duty to protect a trespasser, this may be little consolation when thinking later of something that would have prevented a death or injury of someone wandering onto mine property.

Considering in the abstract the word “trespasser,” we think of a wrongdoer rather than a person. It may be easy not to feel particular concern regarding what could happen to a trespasser on mine property. If someone gets killed or injured, however, perspective changes drastically. Something awful has happened to a person who – a short time earlier – was alive and well.

Just as in driving a motor vehicle on a public road, we know a child could dart out from between parked cars and get run over. We trust no such thing will happen. If something happens, we will immediately question ourselves. What might we have done differently, even if we think we did everything right?

Legal considerations

All deaths and injuries with potential to cause death must be reported to the Mine Safety and Health Administration (MSHA) within 15 minutes. MSHA will investigate a trespasser’s death just as any other. Sometimes, the mine operator will be subjected to enforcement. MSHA will cite an inadequately sealed mine entry or virtually any other condition that could have exposed a miner or anyone else to injury. A violation is a violation, regardless of who gets injured.

A bigger question is civil liability. Can the mine owner be liable for a trespasser’s death, with or without an MSHA citation? Business operators can be sued for almost anything. A plaintiff’s attorney can allege a claim, even with little likelihood of success in court, to force a settlement.

There is much to be said for precautionary measures such as fences and ample signage to ward off trespasser entry. If there are hazards unlikely to be perceived by trespassers, eliminating the hazards or posting specific warning signs could prevent a needless accident. Apart from protecting life and limb, precautions prevent accidents and avoid lawsuits – spurious or otherwise.

The law of trespass

The law of trespass varies from state to state, but the states’ laws have much in common. It is a civil wrong to trespass everywhere and may also be a criminal violation. Regarding property owner responsibilities, the general rule is that an owner is not liable for injuries trespassers suffer. While mines fall within the general rule, a plaintiff’s attorney could forge an argument for a civil suit based on allegations in MSHA citations, particularly if connected to exceptions to the general rule.

There are several exceptions by which injured trespassers (or their estates) may recover money damages in a lawsuit. For example, a minor’s trespass can be an exception where there is a life-threatening hazard that a child might not recognize. Just as a homeowner’s swimming pool might be deemed an “attractive nuisance,” an old quarry full of clear, cool water could be very inviting to kids, especially if nothing prevents them from swimming there. (For the record, friends and I swam in such a quarry when I was young. We had no idea who owned the property, but we heard people swam there.)

Also, known trespassers may fall into another exception for imposition of liability. If a mine operator knows people are trespassing regularly and if the operator knows of hazardous conditions to which trespassers may be exposed, trespassers may be deemed “licensees” whom a property owner must warn of dangers on the property.

In addition, many states require property owners to warn all trespassers of hazardous conditions or activities on the property, such as the shooting of firearms. Blasting would qualify and raises the specter of absolute liability.

Finally, a property owner may not wantonly allow trespassers to be unwittingly exposed to a known hazard when it is also known that unauthorized people may enter the area. Under no circumstances may a property owner create a trap, such as a disguised trench, that trespassers could fall into.

Take note

If a mine operator knows people are trespassing regularly and if the operator knows of hazardous conditions to which trespassers may be exposed, trespassers may be deemed “licensees” whom a property owner must warn of dangers on the property.

Allison Kral

About the Author:

Allison Kral is the former senior digital media manager for North Coast Media (NCM). She completed her undergraduate degree at Ohio University where she received a Bachelor of Science in magazine journalism from the E.W. Scripps School of Journalism. She works across a number of digital platforms, which include creating e-newsletters, writing articles and posting across social media sites. She also creates content for NCM's Portable Plants magazine, GPS World magazine and Geospatial Solutions. Her understanding of the ever-changing digital media world allows her to quickly grasp what a target audience desires and create content that is appealing and relevant for any client across any platform.

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