§ 76-80. Safety of premises - Liability to trespasser.

A.  A possessor of land, including an owner, lessee, or other occupant, has no duty to make its premises safe for a trespasser and is not subject to liability for any injury to a trespasser.

B.  Notwithstanding subsection A of this section, a possessor of land may be subject to liability for physical injury or death to a trespasser in the following situations:

1.  A land possessor who knows or reasonably should know of a trespasser’s presence on the premises has a duty not to injure that trespasser by a wanton or intentional act, except as permitted by Sections 643 and 1289.25 of Title 21 of the Oklahoma Statutes; or

2.  A land possessor may be subject to liability for physical injury or death to a child trespasser from a highly dangerous artificial condition on the land if the plaintiff establishes all of the following:

a.the possessor knew or had reason to know that children were likely to trespass at the location of the condition,

b.the condition is one the possessor knew or reasonably should have known was unusually attractive to children and involved an unreasonable risk of death or serious bodily harm,

c.the injured child was attracted onto the premises by the condition,

d.the child lacked the ability to appreciate or realize the risk,

e.the utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child involved, and

f.the child’s injury was directly caused by the possessor’s failure to exercise reasonable care to eliminate the danger or otherwise protect the child.

As a matter of law, a child under seven (7) years of age has no ability to appreciate the risk from highly dangerous artificial conditions.  A child between seven (7) and fourteen (14) years of age is presumed to lack the ability to appreciate the risk from highly dangerous artificial conditions; this presumption may be overcome if the possessor proves by the greater weight of the evidence that the child had the ability to appreciate the danger on the premises at the time of the harm.  A child trespasser who is fourteen (14) years of age or older has the burden of proving by the greater weight of the evidence that the child lacked the ability to appreciate the danger on the premises at the time of the harm.

C.  “Trespasser” means a person who enters the real estate of another without the permission of the person lawfully entitled to possession.  Permission may be either expressed or implied.

D.  1.  This section shall not affect Section 16-71.7 of Title 2 of the Oklahoma Statutes relating to trespass upon agricultural land or Section 10.1 of Title 76 of the Oklahoma Statutes relating to trespass upon land used for recreational purposes not for profit.

2.  This section shall not create or increase the liability of any person or entity.

Added by Laws 2011, c. 234, § 9.