Legal Question in Civil Litigation in Massachusetts

Re: Liability for non-customers or non-employees

Your business should have liability insurance coverage. The landowner's lender will require liability insurance coverage. If there is a suit there is a right to a legal defense under the policy. Then each case depends on its facts. In Massachusetts adult trespassers have very few common law rights. I can't evaluate all the possibilities you describe. It sounds like the trespassers bother you. Have a bank official contact the local police to keep the area from becoming a trouble spot.

Best wishes,

Charles W. Cobb

Re: Liability for non-customers or non-employees

ANSWERS:

1. "Trespassers" are owed less of a duty (hence you have less liability) under our state law than people who have a 'legitimate' reason for being there, who are called "invitees". But if a bus on the parking lot hits someone who was just stealing a parking spot (I mention this because I've been handling just such a case), you're going to have to pay up one way or another. Likewise, if there's a dangerous condition (a pothole, a branch of a rotten tree that will fall, even ice), or just another person driving, you'll find yourselves either paying or fighting an expensive battle in court.

2. What is our liability for individuals that "loiter" on The Bank's property?

Why would anyone loiter there? Is it a great place to hang out? There's an "attractive nuisance" doctrine that undoes the protection of uninvited trespass; if you've got a nice place that attracts people (and someone then gets hurt -- that's the nuisance part), and you don't have it posted or it draws in children, then you're going to have trouble.

2. Does The Bank have the right to ask "loiterers" to leave the property?

Of course; and you should try to post signs. Unfortunately, they're not pretty signs. I suspect it is trespassing -- even being there without a reason that benefits you, the landowner, not just loitering -- that you need to post for, since that would include people who park and go somewhere else as well as those who seem to be milling about aimlessly (watching women?)

I can't really speak to the laws of CT and RI, but I could research the issue for you if you will bother to contact me directly. I might have a favor to ask in return, though. (I think I know who -- which bank -- you are!)

3. Should law enforcement officials ask these "loiterers" to leave the property?

If you ask them to, they probably will do so for you. If you post, you ought also not turn your back on people who are there against the policy or you "lose your rights". Anyway, in property law in general, you actually lose the right to preclude someone from using your property if you allow someone to trespass for a given length of time (i.e., 20 years of letting it slide that people park on your land and you will have inadvertently (in fact against your own wishes!) have granted them an easement, called a prescriptive easement.) Ignoring them after you post signs also hurts your liability protection; you need to make some efforts.

4. If we are liable for these "loiterers" while on The Bank's property, must we ensure a safe environment for them?

EXACTLY. But where there's a safety issue, know that you have such a duty to your employees and customers anyway, so you need to keep the land safe for them.

Are you in a mortgage department, perhaps? If so, be sure to call me! My phone number is (617)527-0050. Thanks.