AMI 1102 Duty Owed to Trespasser

Use this instruction when there is no dispute that the injured person was a trespasser. If the status is in dispute, use AMI 1107.

The nature of the injured person's activities may require modification of this instruction. See Ark. Code Ann. § 18-11-301 (recreational users) and Ark. Code Ann. § 18-60-107 (persons involved in the acquisition or purchase of agricultural products).

This instruction states the rule in Ark. Code Ann. § 18-60-108 and is consistent with the holdings in Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 445 S.W.2d 505 (1969); Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935); and Arkansas Short Line v. Bellars, 176 Ark. 53, 2 S.W.2d 683 (1928).

The duty toward a trespasser in a position of peril arises when the perilous position is discovered, not when it should have been discovered. Arkansas & L. Ry. Co. v. Sain, 90 Ark. 278, 119 S.W. 659 (1909).

The fact that an alleged trespasser is a minor is not determinative of whether he or she is a trespasser. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982) (six-year old child may be a trespasser).

In Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984), the court held that the parking of a vehicle without permission on a landowner’s property was a continuing trespass, and the landowner was not liable for injuries to the plaintiff when he returned to remove the vehicle at the request of a company contracted by the landowner to construct a fence.