Select Page

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

Torts II
Prof. Pittman
Spring 2010

I. OWNERS AND OCCUPIERS OF LAND

1. OUTSIDE THE PREMISES 1/12

· Taylor v. Olsen, 1978
o Rule: With respect to natural conditions, the landowner owes NO duty to a person outside the prop.
§ However, must use “R care” to prevent an UR RH.
§ What constitutes “R” will depend on the circumstances. Custom may be factored in.
o Urban v. Rural Setting
§ When in an urban area, need to be more careful
§ Different in rural, less populated areas
o Natural v. Artificial- Notes 3, 4, and 6
§ Naturally arising hazards impose NO duty of care to passerby’s injured (weeds, ice, snow, rocks falling, etc.)
§ Artificial hazards DO impose duty. Policy: owe duty b/c you changed the land, t/f you are responsible for any subsequent injuries.
§ Treesare an exception IF the owner knows about the condition of the tree.
Ø Owner has duty to use R care to check the condition of the tree.
Ø If tree is visibly rotten, then the landowner has constructive notice.
§ Note: some states are moving away from the natural/ artificial distinction
· Salevan v. Wilmington Park, Inc., 1950
o Facts: Π struck by baseball while walking down the street past Δ ballpark.
o Rule: Landowner whose prop is adjacent to public sidewalks of a highway owes a duty to take R precautions to protect the traveling public.
§ What constitutes “R” will depend on the facts and circumstances of the particular case.
o Animals and other Dangerous Instrumentalities- Notes 5, 6, and 7
§ Animals- owe duty to confine animals to your premises
§ Dangerous Instrumentalities- may owe duty to refrain from putting telephone poles, trap door, baseball park, target practice dummy, etc. next to public road when you know that it could cause UR RH. Question of foreseeability.
o Deviation onto Land and Distance Factor- Notes 8, 9, 10, and 11
§ Duty owed to people who are on your land incidentally or R-ly.
§ The rule has been extended to those who deviate intentionally from the highway for some casual purpose connected w/ travel
§ NO liability for dangers a considerable distance from the highway.
· Summary- on EXAM, discuss:
o Artificial v. Natural Conditions
o Deviation onto Land and the Distance Factor

2. ON THE PREMISES

A. Trespassers
· Some jurisdictions mandate a general duty on the L to use ordinary care to all people on his premises—whether it is the lessee, or the lessee’s invitees or licensees. However, they don’t owe a duty of care to
trespassers. Sheehan v. St. Paul & Duluth Ry. Co
· Rule: When there is a trespasser on your land, you owe him a duty if you know that he is on your land. The duty comes into being once you know he is there. Once the duty is imposed, landowner must use R care to avoid injuring trespasser.
· Active v. Passive Injury:
o Active- must use R care once the trespasser’s presence is noticed (driving, shooting, mowing lawn).
o Passive (trap doors, unguarded wells) – do NOT have to make the premises safe, but must warn the trespasser about the unsafe condition (trap door, unguarded swimming pool).
· If the person is not discovered, then it depends on anticipation (or R anticipation); and then use R care to guard against injury
· Landowner may NOT:
o Injure trespasser N-ly by an act specifically directed at him (spring guns).
o Cause injury to a trespasser that is willful of wanton
· Exceptions:
o Frequent trespassers on limited area- Δ must anticipate them and exercise R care in his activities.
o Tolerated intruders- Δ’s continued toleration of the trespass = permission to use the land, so that Π becomes a licensee.
· The landowner’s immunity concerning trespassers extends to members of his household but NOT neighbors on adjoining land.

B. Licensees
· Barmore v. Elmore, 1980
o Facts: Π went over to Δ’s house to discuss Masonic lodge. Δ’s adult son stabbed Π with a steak knife.
o Invitee- go on the land in furtherance of the owner’s business
o Licensee- A social guest or one who enters the premises of the owner by permission
· Rule: landowner must use R care t to avoid actively injuring licensee; and the landowner must warn them of concealed conditions that might passively injure them
· Social guest as a licensee generally must take the premises of his host as he finds them.
o However, landowner has duty to warn of any hidden dangers which are unknown to his guest and which he has knowledge of; and to refrain from injuring the guest willfully and wantonly.
o What is open and obvious to a RPP?
o An incidental service rendered by a social guest does NOT deem them an invitee

C. Invitees
· A regular or prospective customer does NOT have to make a purchase on a particular occasion to be considered an invitee. Campbell v. Weathers
· Ex. of Invitees:
o Attending free public meetings
o Spectators at public amusements, entering on a free pass
o Free use of telephone provided for the public
o Entering a bank to get change
o Use of state or municipal land open to the public
o Visitors in national parks
· Most cts have rejected CL rule that Π status on public land depends on whether he entered for purpose they were open to the public (invitee) or whether he entered for unintended purpose (licensee).
· Whelan v. Van Natta
o Facts: Π came in to purchase cigarettes. After his purchase, he wanted a box to put them in. He entered the backroom and fell down an unlit stairwell.
o Rule: When Π was purchasing cigarettes, he was an invitee. Getting the box made him a licensee b/c he was pursuing his own interest.
§ L NOT liable for changes he does NOT know about which make condition not open and obvious.
§ Here, if he had known the light was out, then he would have had duty to warn.
· The scope of the duty owed by occupant to an invitee is one of R care in all the circumstances. Even though the danger is known to the Π, the Δ may be found to be N
o Parking garage: duty frequently owed to a parking invitee to protect them from 3rd party crime.
o Natural hazard: (snow, ice or rainwater) many juris hold that invitor owes NO duty to any invitee that slips and falls b/c of hazard
· A landowner may be liable for injuries sustained by an invitee for the acts of others that fall short of criminal behavior
o R precaution required to prevent a drunk from harming another;
o R action to stall violence against a patron;
o Duty to warn adjacent properties (business entrances) if landowner knows of the danger
D. Attractive Nuisance 1/14
· Historically, situations where children somehow attracted to Δ premises and injured.
o Ex: turntable, swimming pool, etc.
o CL Rule: duty to act as RPP would to guard children from the danger of the attractive nuisance
o Note: thing which attracts must cause the injury
· R. 339 (maj) is more broad in that children do NOT have to be attracted to the premises by the injuring instrumentality. Imposes liability for injury caused by artificial condition where landowner:
1) Knows or should know children likely to trespass where dangerous condition is;
2) Knows or should know condition involves UR risk;
3) Children do NOT realize danger involved b/c of immaturity;
4) Utility of maintaining the condition is slight in relation to RH; AND
5) He fails to exercise R care to eliminate the danger or otherwise protect the children.
· Condition may be either natural or artificial???

E. Persons Privileged to Enter Irrespective of Landowner’s Consent
· Public employees or officials do not fit very well into any of the categories that the law has established for the classification of visitors.
o Mailmen, etc are treated as invitees. You must make the premises safe for them.
o Firemen, however, are treated as licensees. Must protect against active conditions. Must warn of passive conditions.
o Move away from this to RPP std.
· Private persons: individuals who come on the premises for self-protection or to rescue or aid someone
F. Rejection or Merging of Categories
· Rowland v. Christian-
o Facts: Δ invited guest (social guest) Π to her apt. Π injured by shifty sink.
o Rule: T has duty to use R care (inspect/repair) to make his premises safe, and there is NO longer a distinction b/t invitees and licensees.
· A few juris have also merged in trespassers, but most have NOT. Distinguish b/t voluntary and involuntary trespasser.
· Gen rule to determine liab is whether in the mgmt of his prop, Δ has acted as a RPP in view of the probability of injury to others. Trend is toward abolishment of CL categories and a general SoC toward anyone who enters one’s premises.

3. LESSOR AND LESSEE

· Under CL, L owes no duty to T or his guests once prop has been leased UNLESS it falls under one of thes

1 year in MS (normally shorter)

Workers Comp

E’ee’s only recovery for N acts by e’er.

E’ee CAN collect above workers comp if intentionally injured by E’er.

FTCA

Can’t sue fed gov’t for IT of E’ee UNLESS it’s a police officer.

§ A Good Faith Mistake is NOT a defense to an IT. Ranson v. Kirner.
o However, when the affirmative defense of self defense is raised, a reasonable mistake is a valid defense.
o Ask: Did Δ intend to cause the result?
§ Insanity: Generally, NOT a defense to an IT. Policy: want caretakers to be aware and watchful. Exception: insane person does not know he will cause injury, i.e. they are delusional, t/f they CANNOT form requisite intent. McGuire v. Almy.
o Examples where Insanity Defense would work: torts involving deceit, malicious prosecution, slander, and libel. Insane person cannot form the requisite intent.
o Health care providers working w/ the insane may AoR
o If the insane person CANNOT form the requisite intent, caretaker may be liable under N Supervision
§ Intoxication: NOT a defense to the intent element of an IT. Policy: discourage drunkenness
§ Transferred Intent: holds Δ liable for a tort even where the Π is unexpected and the harm is unexpected. Talmage v. Smith. Must intend to commit one of these, however different one of these actually occurs to have transferred intent: battery, assault, false imprisonment, trespass of land, and trespass to chattels.
o Ex. where TI works: intended to commit false imprisonment, however actually cause an assault
o Ex. where TI doesn’t work: intend to assault, but actually cause an arson
o Remember, should still be able to sue for N

2. BATTERY

§ The intentional, unprivileged harmful or offensive contact by Δ w/ the person of another.
o Act- Harmful or Offensive Touching
§ Harmful- pain or injury(Wallace v. Rosen)
§ Offensive- offends RP’s sense of personal dignity
o Intent (Subjective):
§ Purpose or
§ Substantial Certainty
o Causation
§ CL- Direct Cause
§ Modern Approach- examine results of force that Δ’s act set in motion
§ Pittman: To do an act w/ the purpose or w/ substantial certainty that a harmful or offensive contact will occur.
§ R. 13: Harmful Contact: An actor is subject to liability for a battery if:
a) He acts intending to cause a harmful or offensive contact; AND
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:
a) He acts intending to cause a harmful or offensive contact; AND
b) An offensive contact results
§ Wallace v. Rosen- Policy: in a complex busy society, some degree of touching is inevitable. Thus, analyze by “what would a RP find offensive?” .
§ Eggshell Rule applies to assault and battery. Need only find intent to do an act.
§ Committing an inoffensive act that has been previously prohibited by the victim is abattery.
§ Battery CAN occur even though victim is NOT aware of the touching (e.g. surgery or sleeping Π).
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 Πs body is never