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

·         Barmore v. Elmore
o       Fact Summary: Δ’s 47yo son stabs guest with a steak knife
o       Social Guest = Licensee
§         Active Condition – Use R care not to injure
§         Passive Condition – Warn of hidden and known dangers
§         Must take the premises as the owner takes them
§         O has no duty to find out about the dangers
·         i.e. O not required to insure safety
o       Some JDs distinguish between licensees and bare licensees – people who drop in w/o invitation (e.g. salesmen) à Less duty is owed to bare licensees
o       Social guest = licensee no matter how urged by O to come
o       Incidental service by licensee does not render him an invitee
·         Campbell v. Weathers
o       Fact Summary: Π goes in a store, looks around, goes to bathroom and is injured
o       If the proprietary nature of a location induces you to enter, you are an invitee
o       Business Purpose = Invitee
§         Use R care to maintain the premises safe for the invitee
·         Inspecting premises to discover the problem
·         Using R care to correct the problem
o       This could include a warning IF that is sufficient
o       It may also include repairing the condition, especially if the warning might not be sufficient
o       In a problem w/ invitee, skip the warning and go straight to duty to correct
§         People who have no intention of buying anything now or in the future = licensee
o       Examples of Invitees
§         Public meeting attendants, spectators at public amusements, free use of public phone. entering a bank to break a $20, entering to get things advertized as give-aways, use of public land, and visitors of national parks
o       On public land, municipality owes a DRC to keep premises safe
o       Yale owed DRC to alumnus who came to reunion, attempted to urinate and fell
·         Whelan v. Van Natta
o       Fact Summary: Π bought cigarette s and then asked for a box, fell down stairs
o       An owner must warn the licensee of KNOWN dangers
§         i.e. When owner does not know of the danger, no duty to warn
o       When patron goes into part of store where invitation does not extend he becomes a licensee
o       O owes invitees DRC – a warning sign might not be R
o       Sometimes, duty to protect invitee from 3rd party criminals
§         D to reduce danger (woman raped in parking garage)
§         No D w/ regard to responding to crime (teller refusing robber’s demands)
o       Sometimes, duty to protect invitee from 3rd party acts short of crimes
§         E.g. D to prevent drunk patron from injuring another
1. Children
·         Attractive Nuisance – Something that might attract a child onto your property
o       DRC to guard kids against attractive nuisances – they are to be treated like licensee
o       Restatement § 339 (predominate rule): Possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
§         O knows or has R to know they will be there
§         The condition is one the owner knows involved an unR risk of harm or death
§         The children because of their youth do not discover the condition or realize the risk
§         Utility of danger and burden of eliminating danger < Risk §         O fails to exercise RC to eliminate the danger ·         Duty to warn adults of hidden dangers ·         Duty to warn children of hidden AND visible dangers 2. Persons Privileged to Enter Irrespective of Landowner’s Consent ·         Sanitary and safety inspectors à invitees ·         Fireman and policemen à (bare) licensees ·         Basically, courts have no idea what to do with public officials Rejection or Merging of Categories (DRC to all) ·         Rowland v. Christian o       Facts: Faucet in Δ’s house broke and severely cut Π’s hand o       Under the old rule, the Π would have won anyway because Δ did not know about the danger o       Rule: The occa-piah [sic] has a duty to use reasonable care to make the premises safe for invitees and licensees (minority rule) §         Inspect & Repair (when warning is insufficient) o       To merge, or not to merge? §         Reasons FOR merging trespassers: somebody has to pay for a trespasser’s injury so the homeowner should pay/get insurance §         Reasons

ate cap the amount of damages that can be collected for wrongful death
·         Moragne v. States Marine Lines, Inc.
o       Rule: Wrongful death is actionable under maritime law
o       Damages
§         Loss of Support (financial)
§         The monetary value of services the decedent provided
·         Including the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed plus domestic help
§         Compensation for loss of society/Consortium
§         Funeral Expenses
o       Beneficiaries
§         Spouses – always
§         Domestic Partner, Civil Union Partner, Reciprocal Beneficiary – sometimes
§         Children – always
§         Stepchild – not so much
§         Children out of wedlock – more recently yes
§         Parent – yes (if no spouse or children)
§         Next of kin – sometimes, if financial loss can be shown
§         If no living beneficiaries, the action fails
§         Allocation among beneficiaries according to a formal mechanism
o       Are parents beneficiaries of unborn children?
§         Pre-natal injuries à Yes
§         Stillborn à Not usually
·         Selders v. Armentrout
o       When a child dies, the losses are no longer limited to economic (same as above)
o       Some states cap the amount of societal damages
o       Punitive if you can show willful/wanton/intentional action in killing significant other
·         Decedent is the Π – essentially, the dead person can sue via his executor/administrator
·         This is a double edged sword: executor/administrator can BE sued for Π’s actions
·         Murphy v. Martin Oil Co.
o       Π can sue for both survival AND wrongful death