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University of Dayton School of Law
Gerla, Harry S.


I. Adopting a reasonable care standard for landowners
A. Different views of courts
1. by 2004 almost all or most non-trespassing entrants upon land are entitled to reasonable care
a. you are responsible for your willful acts and for
injury to another as a result of a lack of ordinary care or skill in the management of his property or person, unless the injured willfully or through a lack of ordinary care brought the injury upon themselves (Rowland v. Christian)

b. departure results when the plaintiff is classified as a trespasser, licensee, or invitee each one having its own standard for duty owed. (Rowland v. Christian)

c. the distinction between invitee, licensee, and trespasser are no longer justified in light of modern society and the complexity and confusion is due to attempts to apply just rules within the ancient terminology. The distinctions do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of the land, because they bear little relationship to the classifications (Rowland v, Christian)

i. In many situations the burden (conduct necessary to meet the burden of exercising due care to invitees will often meet the burden to licensee and trespasser) to the defendant will be the same regardless of the classification (Rowland v. Christian)

ii. a trespasser and licensee’s life and limb are not less worthy of protection nor less worthy of compensation under the law, and to determine whether there is a duty of care is contrary to our modern social mores and humanitarian values (Rowland v. Christian)

d. Factors that can be taken into account when determining the reasonableness of defendant’s conduct (Scruti v. City of New York)

i. landowner has a right to use his property and to develop it for his profit and enjoyment; however he must still take reasonable measure

merely to present testimony of another physician that he would have acted differently from the defendant, since medicine is not an exact science (Walski v. Tiesenga)

ii. differences in opinion are consistent with the exercise of due care

iii. medical standards almost always reflect a particular custom or procedure used under very particular circumstances; the medical standard of care is the practice of the medical community

iv. if the expert testimony is required and the plaintiff does not offer any proof or it is inadequate a verdict is directed to the defendant

v. where competent medical authorities is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated be a