Trespassers Injured on Construction Sites – Can They Sue?

The short answer to this question is yes, but it is a qualified yes. Anyone can file a lawsuit requesting a court date for an initial hearing. The problems begin when the case is presented at the preliminary hearing. A lawsuit is a legal pleading for the court to grant the right to have a potentially legal breach presented in court. It is important for all parties involved to understand that a civil trial is different from a criminal trial and a plaintiff that was trespassing at the time of an injury may experience both proceedings.

Preliminary Hearing

The initial hearing in a civil trial is focused on establishing legal standing. Legal standing is the court determination that the plaintiff has filed a case of merit. The judge will rule that the merits of the case will allow the case to proceed to the next level of establishing evidence. Our construction attorney in New York explains that a standing hearing does not examine the evidence, it just establishes the fact that the plaintiff can actually sue for damages.

The respondent is also allowed to motion the court and this is normally a request for a summary dismissal when trespassing on a construction site is involved. The initial trespassing established in the preliminary hearing gives the respondent the legal standing to counter-sue and pursue criminal charges after the court record shows that the plaintiff was trespassing intently. Negligent, or mistaken, trespassing can be viewed benignly by the court. If the construction company can provide evidence of providing proper legal property posting and secured entrances, then the court may stop the proceeding because the respondent has demonstrated a reasonable duty of care.

Going to Trial

When the case goes to trial the plaintiff, or injured party, is required to prove the claims in the lawsuit. Anyone expecting to win a legal claim when they were trespassing will need an excellent experienced attorney. The respondent holds the right to cross-examine the plaintiff and require validation of all evidence presented. This can be done in a motion of discovery hearing between the preliminary hearing and actual trial and is another opportunity for the respondent to request dismissal.

The burden of proof standard in a civil proceeding is not beyond a reasonable doubt. It is a preponderance of the evidence. This is essentially a 51-49 weighing of the evidence and the results can often vary depending on the “weight” of the evidence. It is possible in cases of severe injury that the criminal charges will provide little resistance to stop the lawsuit.


There are two types of damage awards in civil cases. They are compensatory and punitive. Compensatory damages only include actual lost wages and expenses, but are not limited to the insurance policy maximum. Punitive damages are awarded in trials by juries that want to send a distinct and serious message to the respondent that the negligence presented in the case is an egregious breach of duty of care and will not be tolerated.

Damages are routinely evaluated by judges as excessive and can be modified by the court. However, punitive damages awards in similar cases can be used to negotiate a settlement, which is very often what occurs in negligence lawsuits. In cases that fit within the insurance protection, the construction company can opt to settle out of court if it lessens the total damages. 

Georgina Clatworthy writes on legal topics and is a former law blog editor.  She contributes this post on behalf of Canfield, Madden and Ruggiero.  For anyone looking for a construction attorney in New York, this firm has many years experience in handling construction accident cases and will always approach a claim with the clients best interests in mind.