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Torts II
University of Mississippi School of Law
Pittman, Larry J.

Spring 2010
A.    Outside the Premises
Taylor v. Olsen- P/Landowner only owes duty to use reasonable care to persons outside his land. However, if P has constructive notice of a danger, must warn. What would RPP do? Note: Artificial conditions that create a danger that D knows or should know about require further precaution.
Note 6 (p. 482) Uphill landowner owes duty to downhill landowner to prevent landslide; landowner liable for injury caused by tree roots breaking up sidewalk on adjacent property
Salevan v. Wilmington Park- bball park knew balls flew over fence, so they had duty to take precaution. They took some, but issue is not, did they take enough? Use expert to testify what could have been done, then weight RH+LH>B.
§ Artificial condition of land increases duty
§ Adjacent landowners to road must warn or protect of some danger on land in case driver enters land to go around obstruction – duty owed for trap
§ Ordinances requiring removal of snow/ice on sidewalks creates duty in municipality, but some courts allocate duty to landowner.
§ Landowners are liable for negligence or nuisance if they alter the condition of their land to discharge water or snow on a highway
§ No duty to protect public passerby from criminal actions
B.     On the Premises
Sheenan- Trespassers- no duty is owed to trespasser until owner receives notice of them. It arises at the moment of discovery.
Exception to no duty owed rule:
a)      Actual knowledge of
b)     Reasonable anticipation
c)      Tolerated intruders- may become licensee
d)     Dangerous conditions.
Licensees and Invitees:
Licensee- social guest- on land of another w/ consent of owner/occupier.
            Duty Owed: To warn of known dangers, use reasonable care, refrain from willfully/wantonly injuring.
Invitee- business or public purpose- on land w/ consent of owner for economic purpose for which promises is held open. In business to buy or intent to buy in future. Normally invited.
            Duty Owed: to inspect for dangers and warn or repair those dangers. Higher duty owed.
§ Whether or not customer bought something is irrelevant, b/c they could become customer in future.
§ If invitee exceeds his invitation and goes to another part of the premises (storeroom), if the possessor consents he is now a licensee(lesser duty owed), but if no consent he is a trespasser.
§ If landowner knows of unreasonable risk of harm to invitee, precautions may not be enough. May need to fix danger. Warning sign probably won’t cut it.
Attractive Nuisance Doctrine – R. 339- A possessor of land is subject to liability for physical harm to children trespassing if there is some:
a)      artificial condition on the land
b)     owners knows or has reason to know children are likely to trespass
c)      children do not know of risk b/c they are young
d)     Risk outweighs the utility
e)      Owner fails to exercise reasonable care
Elements that must be proved:
1)      Unreasonable risk of harm to children
2)      Child will not discover risk
3)      Child will play there
Age requirement(jurisdictions differ)
1)      Under 12
2)      Up to 14
3)      Look at other children of that age
§ Policemen/Firemen are dealt w/ 5 different ways
                                                              i.      Classified as licensees
                                                            ii.      Classified as invitees
                                                          iii.      Entitled to duty that some other person on premises at that place and time is owed
                                                          iv.      Separate classification w/ a special duty owed
                                                            v.      Reasonable care under all the circumstances
§ Other public officers, e.g. health inspector, safety inspector, are owed duty of invitee.
§ Rescuers are classified as persons they are rescuing.
§ Minority Rule- Calif. in Rowland terminated the distinctions of persons on premises. The duty owed, regardless of their status, is to use reasonable care to guard against harm to your guest.
§ Note: Majority rule is to look at categories w/ different SOC.
§ Landlord/Tenant- The tenant owes a duty to people on his premises. There are six exceptions to this rule, where the landlord will owe a duty.
1)      Undisclosed dangerous conditions known to lessor and unknown to lessee- landlord conceals harm
2)      Conditions dangerous to persons outside the premises- e.g. tree rotting near highway on rented land.
3)      Premises leased for admission of the public- only liable for conditions existing at time of transfer. After transfer, tenant liable.
4)      Parts of land retained in lessor’s control which lessee is entitled to use- common areas- reason: lessor is only one w/ control over areas.
5)      Lessor who contracts to repair
6)      Negligence by landlord in making repairs.
Pagelsdorf- Ct abolished licensee/invitee difference, and held that landlord owes duty to act as a RPP to tenant and tenant’s guests. Note: if landlord had no access to building, would be factored in for notice requirement.
Kline – tenant assaulted in common area of apartment building, sues landlord. Where a landlord has notice that criminal activity occurred on the premises exclusively in his control(i.e. common areas), he has every reason to expect like crimes to happen again, and has power to take preventative action. Landlord will therefore probably be held liable although no common law duty is owed to protect from criminal acts of a third party. 
—Is the criminal act foreseeable? Issacs said you don’t have to show prior criminal activity, only that it’s foreseeable.
ATTRACTIVE NUISANCE §339 (pg. 499-500) – A possessor or land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists i

en if the plaintiff was not the intended target
§ However, when the affirmative defense of self defense is raised, a reasonable mistake is a valid defense.
§ Insanity: NOT a defense to an intentional tort. Exception:  insane does not know he will cause injury (so delusional, they cannot form requisite intent)
o   Health care providers working w/ the insane may assume the risk.
o   If the insane person cannot form the requisite intent, caretaker may be liable under negligent supervision.
§ Intoxication: NOT a defense to the intent element of an intentional tort.
§ Transferred Intent: holds D accountable for a tort committed against one who was not his intended target. 
§ The intentional, unprivileged harmful or offensive contact by the D w/ the person of another.
§ Touching must be:
o   Harmful, or
o   Offensive (to a reasonable person)
§ Pittman: To do an act w/ the purpose or w/ substantial certainty that a harmful or offensive contact will occur.
§ Anger is NOT an element.
§ R. 13: Harmful Conduct: An actor is subject to liability for a battery if:
o   a) he acts intending to cause a harmful or offensive contact; and
o   b) a harmful contact w/ someone else directly or indirectly results.
§ R. 18: Offensive Contact: An actor is subject to liability for a battery if:
o   a) he acts intending to cause a harmful or offensive contact; and
o   b) an offensive contact results
§ Eggshell rule applies to assault and battery. Need only find an intent to do an act.
§ Committing an inoffensive act that has been previously prohibited by the victim is a battery.  
§ Battery CAN occur even though victim is NOT aware of the touching (e.g. surgery).
§ Battery can occur by touching something closely associated w/ the body that is deemed to be an extension of the body. E.g. snatching a plate from someone’s hand is battery even if P’s body is never touched. Fisher. Also, grabbing a package from a customer can be a battery.
§ An act that places P in fear or apprehension of immediate harmful or offensive contact w/out consent or privilege.
§ Pittman: To do an act w/ the purpose or w/ substantial certainty that one will be placed in a reasonable apprehension of an imminent battery.
§ An offer or threat to do offensive or harmful touching.
§ Mere words w/out threat of physical harm is NOT an assault.
§ Elements:
o   Threat or offer to inflict injury upon another; and