Torts Outline | ID 67533 | Liberty University School of Law

Torts – Spring 2008

I. Owners and Occupiers of Land
A. Outside the Premises
1. Taylor v. Olsen – The duty did not extend beyond what a reasonable person would believe about the tree, must use reasonable care. Foreseeability alone is insufficient to show actual or constructive knowledge.
2. Salevan v. Wilmington Park, Inc. –D has the duty to exercise reasonable care to prevent injury to travelers lawfully using the highway, had reason to know that the balls would leave the park.
B. On the Premises
1. Trespassers
a. Four Types Of Trespassers:
1. Undiscovered – No duty to undiscovered trespassers, and no duty to inspect for artificial conditions.
2. Discovered – Reasonable for an owner to conclude that someone is there. A duty of ordinary care to make safe artificial hazards/conditions; and warn of any death or risk of serious bodily harm.
3. Unanticipated – No duty to unanticipated trespassers, and no duty to inspect for artificial conditions.
4. Anticipated –
b. An obligation is placed upon the company to exercise some degree of care when danger becomes apparent.
c. Trespasser assumes the risk, the obligation arises at the moment of discovery but no pre- existing duty to know of any defect/danger prior to discovery.
2. Licensees – a person who has the owner’s consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from owner’s consent.
a. Duty – the owner of the premises has a duty to warn the licensee of any hidden dangers which are unknown to his guest, of which he, the owner, has knowledge, and to refrain from injuring his guest willfully or wantonly.
b. Two types of licensees: (in some jurisdictions)
i. Ordinary licensees – see above
ii. Bare licensees – salespersons, canvassers, social visitors who “drop in” without an express invitation. The duty owed to “bare” licensees is less than that owed to ordinary licensees.
3. Invitees –
a. Two types
i. persons who are invited by O onto the land to conduct business with O, and
ii. those who are invited as members of the public for purposes for which the land is held open to the public.
b. General Duty the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee.
c. The land owner is leaving himself open to liability when he has something within his store, Starbucks or bathroom, that would lead to a basic invitation to conduct business with the owner.
d. Public invitees – the government owes a duty to use reasonable care to keep public premises safe for all persons who come on the property, regardless of invitee/licensee status.
d. Limitations on invitation
i. A person remains an invitee only while in those areas or parts of the premises held open to him for the purposes for which he came.
ii. Beyond the scope of invitation – if an invitee goes outside the area of invitation, but under the consent of the owner, he becomes a licensee. If the owner does not consent, the person may become a trespasser.
e. Invitee’s knowledge of the danger – An owner/occupant owes an invitee a duty of reasonable care in all the circumstances. Even though a danger is known to the invitee, the owner/occupier of the land may be found negligent if the danger could be eliminated with little difficulty and an injury to the invitee could be reasonably anticipated despite the invitee’s knowledge of the danger.
4. Persons Outside the Established Categories
a. Children – When a landholder sets before young children a temptation that he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm.
i. Attractive nuisance – a nuisance that is attractive to young children, the owner should have reason to believe that such a temptation would lead children to danger. Example: Trampoline, Swimming pool, Railroad turntable.
ii. Restatement rule: §339, a property owner will be liable for injuries to infant trespassers from dangerous artificial conditions:
a. if he knows or should know that they are likely to trespass upon the places where the dangerous condition is maintained; and
b. if he knows of should know that the condition involves an unreasonable risk of injury to them; and
c. if the children, because of their immaturity, do not realize the danger involved; and
d. if the utility of maintaining the condition is slight in relation to the risk of injury to the children; and
e. if he fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
b. Person privileged to enter irrespective of landowner’s consent
i. “Public entrants” defined – any public employee entering the land under a privilege recognized by law, as long as they are acting within the scope of their official duties.
a. “Bare” Licensees public entrant – police and firefighters are licensee,
b. Invitee public entrants – meter readers,
ii. Duty owed depends on reason for entry.
a. If they enter for some purpose involving business dealings with the land occupier, they are owed the same duties as invitees.
b. If the entry is not for a business visit with the land occupier, but under some other privilege afforded by law most courts hold that the public entrant is entitled to the status of a licensee. A few consider the entrant an invitee.
5. Rejection of Common Law Categories – Rowland v. Christian
a. If the occupier of land is aware of a concealed condition that presents an unreasonable risk of harm to other, then the land occupier’s failure to warn or to repair the condition is

certainty.
2. Remittitur Denied
a. Remittitur only granted when it exceeds the max the jury could reasonably find.
3. Five Cardinal Elements of Damages: Consider these when determining damages,
a. Past physical and mental pain,
b. Future physical and mental pain,
c. Future medical expenses,
d. Loss of earning capacity, and
e. Permanent disability and disfigurement.
4. How to tell if a damages award is excessive: Richardson, flight attendant case
a. Falls outside the range of fair and reasonable compensation,
b. Results from passion or prejudice, or
c. So high that it shocks the judicial conscience.
5. Collateral Source Rule
a. Applied when P receives compensation from any source collateral to the tortfeasor. Rule does not apply to payments made by the defendant or by a joint tortfeasor or one who mistakenly thinks he is a tortfeasor, or by an insurance company or other person who makes payment on behalf of a tortfeasor.
b. The collateral source rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages.
c. Evidence of a collateral source may be used:
i. To rebut a plaintiff’s testimony that financial necessity required an early return to work or incomplete medical care;
ii. To show that the plaintiff had attributed her condition to another cause such as sickness;
iii. To impeach the plaintiff’s testimony that she had paid her own medical expenses;
iv. To show that the plaintiff had actually continued to work instead of being out of work as claimed.
6. Avoidable Consequences – Zimmerman v Ausland
a. A plaintiff may recover damages for permanent injury that could be corrected with surgery as long as a reasonably prudent person would decline to have the surgery.
b. If a reasonable person might decline to proceed with a particular surgery the plaintiff’s failure to submit to the surgery does not prevent recovery of full damages.
c. Factors include:
i. Risks of the procedure,
ii. Probability of success,
iii. Money and effort involved, and
iv. Accompanying pain.
6. Mitigation: P has a “duty to mitigate.” P cannot recover for any harm which, by exercise of reasonable care, he could have avoided.