Select Page

Torts II
University of Georgia School of Law
Solomon, Jason M.

1.        Under CL & many jxdns now, level of care landowners owe to PL depends on the PL’s status at time of injury. 
A.             A landowner owes a duty to exercise reasonable care to those outside the premises for dangers cause by artificial condition
1.                    Artificial condition- anything that has been changed by human involvement. An artificial condition could have been created by previous landowner
2.                    Rzble Care:
a.                          Apply B>PL. Foreseeable risk of baseballs leaving park. Burden of building higher fence is small in comparison with risk of ball striking pedestrian.
b.                          Use customary practices as well.
2.        3 categories:
A.             Tortsy follows dual approach: legal entrants + trespassers.
B.             Trespassers: General Rule: A landowner canbe liable to a traspasser only for intentional torts & for reckless or wanton conduct.
1.                    Defining Trespasser: Anyone coming onto the land w/o express or implied permission of occupier or w/o legal priv.
2.                    Policy:
a.                          Maximizes landowner’s freedom of choice how to use/maintian the land. 
b.                          Standardized application of rzble person test: Trespasser are difficult to anticipate so protecting them would be expensive, so failing to protect from harm would be rzble.
c.                           Easier & cheaper to proctect from active conduct (landowner’s activities or by artiifical conditions) than passive conditions.
a.                          Posner & Special Trespassers rules: Cost of avoiding the injury-producgin activity is lower than londowner’s cost of taking precations. 
                                                                                i.                                     CONSIDER: How easy is it for DF to conform their conduct to the rules?
3.                    2 classes of Trespassers:
a.                          Mere trespassers – landowner owes duty not to recklessly, willfully, or wantonly injure.
                                                                                i.                                     Wantonness is the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that injury will likely or probably result. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Knowledge need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference.
b.                          Trespassers w/ criminal intent – landowner owes duty not to intentionally injure.
                                                                                i.                                     Ryals v. U.S. Steel – PLs trespassed on DF’s land for the purpose of “stripping out” copper, brass, and other salvageable metals. Decedent, David, died from 3rd degree burns he sustained from contact with 44,000 volt copper line on the owner’s land.
a.                                      PL’s theory of negligence: Owner’s wanton failure to maintain and secure a “switch rack” caused decedent’s death since gate was wide open & there had been 2 prior deaths.
b.                                      Ct affirmed trial ct’s SJ for DF b/c DF didn’t breach its duty.
                                                                                                                    i.                                                 Ct found DF’s failure to maintain to be wanton conduct, but lowered standard of care when trespasser has criminal itnent so the only duty is not to intentionally injure.
A.                                                 Given the conspicuous infications of danger (fence & signs), an unlocked gate wouldn’t imperil a person unless that person elected to disregard obvious danger.
4.                    Child Trespasser – so immature as to be unable to recognize the danger invovled.
a.                          Defining child trespasser – Q of fact. Younger = more likely will condition is attractive nuisance.
b.                          Attracitve Nuisance Doctrine – A child trespasser can recover by proving:
                                                                                i.                                     Child was attracted onto land by artificial condition.
a.                                      No duty w/ natural conditions.
                                                                              ii.                                     Possessor of land failed to use reasonable care.
a.                                      Unreasonable care = utility to possessor of maintaing the condition and the burden of eliminating the danger are slight as compared with the risk to children involved.
c.                           Doesn’t include ordinary risks – fire, bodies of water, falling from height.
d.                          Policy – children are still children; they don’t always appreciate danger.
C.             Invitee: A landowner owes an invitee a duty to exercise ordinary care (normal negligence) to protect him from risks of which the owner is actually aware and those risks of which the owner should be aware after reasonable inspection.
1.                    Defining Invitee:
a.                          RS 332: Invitees are people on the land for material/mutual benefit of possessor or for some purpose related to activities/interests of land occupier.
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
·         Premises may be public or private.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
·         Customers, P who paid admission, garbage collectors (further the use), building inspectors (regulate the use)
B.      To recover, a plaintiff must plead and prove:
1.  Landowner had actual or constructive knowledge of some condition on the premises;
2. Condition posed an unreasonable risk of harm;
3. Landowner did not exercise reasonable care to reduce or eliminate the risk; and
4. Landowner’s failure to use such care proximately caused the plaintiff’s injuries.
A.      Duty of Inspection: Unlike duty owed to licensee, duty owed to invitee covers reasinable respoinse to harzards the landowner would discover thru rzble care.
1. Rzble care – Inspection of the premises to discover any dangerous conditions or latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for the invitee’s protection under the circumstances.
a.        A failure to inspect is relevant only to the extent such an inspection would have revealed the defect (RS 343)
1. Richardson v. Commodore: Plaintiff bar patron was injured at a bar owned and operated by defendants when a portion of the building’s original 1913 plaster ceiling fell on him.
a.        The court reversed and remanded the appellate court’s affirmance of DF’s summary judgment . The court held there was sufficient evidence to create a jury question as to whether reasonable care warranted an inspection of defendant’s plaster ceiling.
B.      Change of Status: Invitees retain status only when he is on that part of premises that he was invited to enter.
1. If he wanders = invitee or trespasser.
D.             Licensee: The duty that an owner owes to a licensee is to not injure him or her by willful, wanton or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.
1.                    Defining Licensee:
a.                          Coming on land w/ express or implied permission for entrant’s own purposes, conferring no particular benefit on occupier.
a.                          Like social guest, business visitors
2.                    Licensee must prove:
a.                          Condition of the premises created an unreasonable risk of harm to him or her;
                                                                                i.                                     Dangerous condition – creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
a.                                      The tree itself wasn’t a dangerous condition. Cutting the tree was the act that created the danger.
b.                          Owner actually knew of the condition;
c.                           Licensee did not actually know of the condition;
                                                                                i.                                     PL can only recover when there’s an info disparity that culminated in harm.
a.                                      In Knorpp, they both knew the same thing (“stuff can happen when you cut down a tree”). No special knowledge by the landowner.
d.                          Owner failed to exercise ordinary care to protect the licensee from danger; and
e.                           Owner’s failure was a proximate cause of injury to the licensee.
3.                    Knorpp v. Hale – PL decedent visited DF landowners’ home frequently in order to date their daughter & had his own key. When he attempted to cut down a tree on DF’s property, the tree fell and killed him.
a.                          PL theory of negligence – Even though he was a licensee normally, he should be conidered an invitee on that day based on mutual benefit of cutting down the tree.
                                                                                i.                                     Ct said that he volunteered so it doesn’t count.
b.                          Ct affirmed trial ct’s directed verdict for DF after finding decdent to be a licensee because decedent was:
                                                                                i.                                     A social guest (not public invitee)
                                                                              ii.                                     Not expecting payment for cutting down the tree (not business invitee).
4.                    Ex: Churchgoers = area with lots of litigation.
a.                          General church attendee = invitee since its for purpose held out to the public.
b.                          Member of the choir = licensee since mutual benefit of providing your wonderful voice.
E.              State of the law:

                     Some jurisdictions apply exception to all open & obvious whether natural or not. A small # have rejected it completely.
2.                    If DF’s conduct intensifies the risks, he loses benefit of the rule.
3.                    Policy:
a.                          BEST argument: PL in much better position to prevent injuries b/c can take precautions at very moment conditions occur.
                                                                                i.                                     Personal responsibility distingued from Information Asymmetry (where DF knew of black ice but did nothing about it).
b.                          Even if PL unaware, where the DF hasn’t created the condition, elements are universally known to both PL & owner.
c.                           Magnitude of burden on DF is great b/c natural winter conditions make it impossible to prevent all accidents.
4.                    Same policy reasons that support open & obvious danger exception and natural accumulation of ice & snow rule apply to wind.
a.                          Valance v. VI-Doug: PL patron brought negligence action against DF restaurant after PL, upon opening restaurant door, fell and suffered a broken hip due to force of wind that was on door. No duty. 
5.                    Procedure: Natural Accumulation & open-and-obvious danger excdption determines whether DF has a duty (Q of law). BUT the determination of duty is sometimes based upone determination of basic facts, in which case it should go to jury.
C.             Criminal Conduct by Third Parties:
1.                    2 methods for determining forseeability requorement of whether or not there’s a duty owed by premieses owner to customer injured by criminal conduct of 3rd party:
a.                          Prior Similar Incidents Rule – it happened before.
b.                          Totality of Circumstances Rule -time, area, type of clientele.
                                                                                i.                                     Adopted by Seibert ct for parking lots = Duty when “frequency & severity of crimnal conduct” in the area “is above and beyond the ordinary.”
a.                                      This test gives DF better chance of summary judgment b/c mere forseeability test is rarely enough to preclude the jury.
b.                                      Seibert v. Vic Regnier Builders: PL robbed in parking lot that had dim lighting and no security for its patrons (no warning signs, video surveillance, or security guards).
                                                                                                                    i.                                                 Reversed summary judgment for DF & remanded.
c.                                       Distinguished from Gould/Kimple cases where the criminal assaults occurred among fellow patrons inside the premises & owners neither intervened nor called the police.
c.                           RS 344: Land possessor who opens property to public had duty to exercise rzble care to (a) discover acts are being done or are likely to be done or (b) give warning adequte to enable visitors to avoid the harm or protect themselves against it.
                                                                                i.                                     Owner of business ordinarily has no liability for injuries inflicted upon patrons or customers by criminal acts of third parties in business’ parking lot, as owner has no duty to provide security; however, such a duty may arise where circumstances exist from which owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.
                                                                               ii.                                     This supports totality of circumstances rule.
d.                          Circumstances to be considered must relate specifically to the foreseeability of the attack on the plaintiff. i.e. in the context of whether the factor played any role in increasing the risk of attack upon PL.
                                                                                i.                                     Maysonete – KFC & homeless man attack.