Left home alone by his inattentive parents and fearing the Wet Bandits, ten-year-old Kevin McAllister rigs his home with a series of booby traps to stop the would-be burglars. Among other measures, Kevin sprays the front steps with water, which quickly freezes, and uses an electric BBQ starter to turn his front doorknob molten hot. But Kevin’s best-lain plan quickly goes awry. Concerned about Kevin safety, Old Man Marley stops by and attempts to open the door. Recoiling in pain, he stumbles backward, slips on the steps, and falls in the snow. Old Man Marley is later diagnosed with a severe concussion and a full-thickness third-degree burn. Will Kevin be ensnared by Marley’s forthcoming lawsuit?
Yes. Even though he set the traps in response to a legitimate threat, Kevin is liable for Marley’s injuries. Texas courts have long expressed a dislike for and concern about the use of booby traps. One explained, “While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to human life and limb of those whose appearance and may be reasonable anticipated, even though they may be trespassers.” In fact, property owners generally owe a duty to avoid injuring trespassers willfully, wantonly, or through gross negligence, as explained in a prior post.
The rule in Texas (and other states) is that setting a booby trap is permissible if and only if the facts are such that the property owner could have used same force and inflicted the same injury had he been present in person. Additionally, the property owner bears the burden of proving that the use of force was justified.
Satisfying that burden requires the property owner to show that the trap was reasonably necessary to protect himself, another person, or his property:
- Self-defense: Under Texas law, a person is justified in using force to protect himself when: (1) he honestly believes that he is in immediate danger; (2) his belief is reasonable; and (3) he only uses the degree of force reasonably necessary to repel the threatened violence. Deadly force is justified only when the person reasonably believes that it is immediately necessary to defend against deadly force.
- Defense of Others: A person is justified in using force to protect another, if, under the circumstances, he would have been justified in using force to protect himself and reasonably believed that his intervention was necessary to protect the other person.
- Defense of Property: Unlike most states, Texas permits the use of force—including deadly force—to protect property interests. A person may use force to protect property if (1) he is lawfully in possession of real or personal property and (2) he reasonably believes that force was immediate necessary to prevent or terminate another’s trespass on the land or interference with the property. Deadly force is allowed in limited circumstances, such as when the person reasonably believes that it is necessary to prevent the imminent commission of arson, burglary, robbery or theft during the nighttime or criminal mischief during the nighttime.
Thus, if the Wet Bandit had been injured by one of Kevin’s booby traps, he could have asserted self-defense or defense of property and likely would have prevailed.
But Kevin’s lawful purpose (protecting himself and his home from burglars) and potential justification for injuring the Wet Bandits does not excuse his injuries to Marley. Property owners set booby traps at their own peril, so that, if they injure or kill someone who did not threaten their person or property, the defenses do not apply. As one Texas court held, “[i]f one with so little regard for human life sets out a [booby trap] with the purpose and intent to injure, he must accept the chances of its discharge at the wrong time, and under circumstances that may occasion injury to an innocent trespasser. He cannot be heard to say that that was a consequence unforeseen, and therefore it was not the proximate result of his acts.” Therein lies the danger of booby traps: You never know who is going to set them off.
Tilting the Scales in Your Favor
If you believe that you, someone else, or your property is in danger, call the police. Do not set up booby traps. And have a merry Christmas, ya filthy animal.