Torts Class Notes 11/18/03


The general rule for trespassers is that there’s no duty to an undiscovered trespasser.  Notice how this is reminiscent of the “last clear chance” rule.


This is a “rule-oriented” part of the course.  Your duty to licensees and trespassers is less than the ordinary standard of care.  However, the standard of care that you are due invitees is precisely the ordinary reasonable standard of care.


Why should landowners have to duty to protect wrongdoers who are committing a tort against them?


Sheehan v. St. Paul & Duluth Ry. Co.


You can’t wantonly and willfully harm a trespasser, even though there is no duty to an undiscovered trespasser.  Trespassers don’t get the benefit of last clear chance because they’re there wrongfully.  Last clear chance wouldn’t require the landowner to do anything in particular to protect the trespasser.


Is there any other duty to a known trespasser?  Do you have a duty to warn?


For an invitor, you might actually have to fix dangerous things on your land.


What is it about sinkholes that might make a landowner’s liability even less?  Sinkholes are natural.  They are created naturally and not by the landowner.  Artificial conditions are those that you create.


You do have a duty to warn known trespassers of artificial conditions that involve a risk of death or serious injury.


What would a reasonable landowner do under the circumstances?


What does a landowner have to do to discharge their duty?


Shooting will generally be viewed as excessive use of force against trespassers.


We will talk about technical trespassers and child trespassers.


Barmore v. Elmore


What’s your duty to a licensee?  Do you have any duty to them?  You have to warn them of hidden dangers that they’re likely to encounter.


Was the plaintiff going over to the defendant’s house for social reasons, or for business reasons?  If it’s the latter, then it leans more towards the plaintiff being an invitee than a licensee.


The presumption that someone comes to your house for social reasons is a strong presumption.  Though there is a business aspect to this relationship, the social aspect seems to overwhelm the business aspect.


There is a duty to warn a licensee of dangerous conditions known to the landowner where he knows it creates an unreasonable risk of harm to the licensee, the licensee is unaware of the condition, and the licensee is unlikely to discover it.


Courts will declare pretty much anything that happens at a house a licensee situation at best.


Homeowners shouldn’t have the burden of preparing for business visitors.


Campbell v. Weathers


The plaintiff fell into a trap door at a cigar store.  The plaintiff wanted to be considered an invitee.  Even though the plaintiff didn’t plan to make a purchase on that particular day, the plaintiff could still be an invitee even though the defendant tries to characterize the plaintiff as a “loiterer”.


You can within someone’s premises change from an invitee to a licensee or a trespasser.  If the plaintiff had just been a licensee instead of an invitee, the defendant may have still been liable.


What if someone knocks on your door, seeking refuge from a storm and they trip and fall on your porch?  How would we characterize that person?  They wouldn’t quite be a licensee, nor would they quite be a trespasser.


What if you hired someone to mow your lawn and they were injured by some hidden, dangerous condition in your land?  They would be an invitee because you hired them.  If there is an economic benefit to you to have that person there, then they’re an invitee.


What if a father goes to a hospital to visit a daughter who works there?  He slips and falls, how would you characterize him?


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