Duty to trespassers in Georgia premises liability cases

A Georgia landowner owes a trespasser no duty of care except to refrain from causing a willful or wanton injury. That’s the text of § 51-3-3(b), enacted in 2014. The statute also protects anyone in possession, including an occupant, an easement holder, or a lessee. Child trespassers have a separate route through attractive nuisance, which subsection (c) preserves as Georgia common law stood on January 1, 2014.

Who counts as a trespasser

The statute doesn’t define the word, so the decisions do. “A trespasser is one who, though peaceably, wrongfully enters upon the property of another”, said Crosby v. Savannah Electric & Power, 114 Ga. App. 193 (1966).

Question	Answer	Source
Does a posted sign matter?	Yes. A 15-year-old who rode past one was a trespasser as a matter of law	Trammell v. Baird
Does knowing people cross create consent?	No. Consent "cannot be implied even if the landowner has knowledge that others, on occasion, trespass"	Trammell
Does age or capacity change the status?	No. It is not determined by age or capacity	Crosby; Gregory v. Johnson
Can permission to be on land cover everything on it?	No. Play on the ground didn't cover climbing a power pole	Crosby
Is someone living with a tenant against the lease always a trespasser?	No, not as a matter of law	Cham v. ECI Management

An invitee can also lose that footing by leaving the invited area. Crosby quoted the rule that an invitee “may not wander at will, without further invitation, to out-of-the-way or dangerous places on the premises”. Classification sets out how the three categories are told apart.

What the duty still requires

Willful or wanton sounds as if it rules out everything else, yet older decisions gave it some content. Trammell v. Baird, 262 Ga. 124 (1992), is the main map. Brooks Baird rode a motorcycle past a sign on Berry College land and died after hitting a covered cable gate. The owners had ticketed and removed other trespassers there before, so they knew people came through. The Supreme Court still ruled for them, because the gate was a static condition.

Situation	What Trammell says
Static or passive condition, even with anticipated trespassers	Only the duty not to injure willfully or wantonly
Dangerous activity or hidden peril, anticipated trespassers	"[I]t is considered wilful or wanton not to exercise ordinary care" to protect them
Presence and danger actually known	Ordinary care to avoid injury, which is "merely the duty not to injure him wantonly and wilfully"
A mantrap	The owner may not prepare the land to injure a trespasser

The contrast case was Georgia Power v. Deese, as Trammell describes it: the defendants released water from a dam onto a man fishing below, minutes after learning he was there. That was active negligence.

That table holds a tension. Trammell’s hidden peril language and its static condition language sit close together, and a hidden static hazard could be argued either way. These decisions also predate § 51-3-3. A lawyer should check how Georgia courts have read the statute against them before relying on the active negligence line.

Children and attractive nuisance

Status stays the same, so a child without permission is still a trespasser. In Gregory v. Johnson, 249 Ga. 151 (1982), the Supreme Court approved the approach of Restatement (Second) of Torts § 339. It applies to an artificial condition, and the plaintiff must show all five points.

1. The possessor knows or has reason to know children are likely to trespass at that place.
2. The possessor knows or has reason to know of the condition, and should realize it involves an unreasonable risk of death or serious harm to them.
3. Because of their youth, the children don’t discover the condition or realize the risk.
4. The utility of keeping the condition and the burden of removing the danger are slight compared with the risk.
5. The possessor fails to use reasonable care to eliminate the danger or otherwise protect them.

Gregory involved a two-year-old who drowned in an unfenced pool with a diving board and slide, in the side yard of a corner lot three blocks from an elementary school. The owners weren’t home and didn’t know that particular child was there. Those facts weren’t enough for summary judgment, so the court reversed. The parents’ own negligence also went to the jury.

The limits matter as much.

• Fences. Gregory said that a fence or other enclosure around a pool “is generally held to be all that is required of a landowner in the exercise of reasonable care”. It distinguished a padlocked chain-link fence and a closed, boarded, and fenced city pool.
• Water, heights, and fire. The court noted the comment that the rule “generally does not apply to dangers of fire, falling from heights, and water”, absent other factors. It also separated natural ponds from recreational pools in areas where children are known to play.
• No insurer. “A landowner is not an insurer of the safety of children, even if he chooses to build a swimming pool.”
• Remote risks. Gregory quoted McCall v. McCallie, 48 Ga. App. 99, 100 (1933), that an owner “is not required to provide against remote or improbable injuries to children playing upon his land”.

So a list of objects can’t answer this. A condition qualifies only if these points are proved on the facts.

Evidence of the first point can include earlier sightings, complaints or warnings to the owner, nearby schools, and paths through a fence. Keep those facts in the file from the start.

Crime on the land

A trespasser injured by a third person has no negligent security claim. Under § 51-3-54(1), added by SB 68 in 2025, an owner or occupier isn’t liable for negligent security “[a]rising from an injury sustained by a person upon the premises of the owner or occupier as a trespasser”. Section 9 of the Act applies this article only to causes of action arising on or after its effective date, and earlier ones stay under prior law.

Defenses that remain

Subsection (d) keeps “any immunities from or defenses to civil liability”. Government land raises its own immunity, as Trammell’s dismissal of the state agency shows. Fault is divided under § 51-12-33. The two-year limit in § 9-3-33 applies to the injury claim, and a child’s deadline may be tolled, so ask a lawyer about the specific date.

For someone with permission, the standard is on the page about the duty to licensees. For a customer, see the duty to invitees.

Sources

• Crosby v. Savannah Electric & Power, 114 Ga. App. 193
• Trammell v. Baird, 262 Ga. 124
• Gregory v. Johnson, 249 Ga. 151
• Cham v. ECI Management, 311 Ga. 170
• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-33, 51-3-3, 51-12-33
• Georgia Senate Bill 68 (2025): § 51-3-54

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.