Torts
Class Notes
Whelan
v. Van Natta
The
plaintiff is an invitee who turns into a licensee. Your classification may change depending on
what you’re doing and whether you’ve exceeded the scope of your
invitation. You might go from invitee to
trespasser, even.
Some
states reject these classifications.
Wilk v. Georges
The
plaintiff came into the defendant’s nursery to buy a Christmas tree. The defendants knew that the floor was
slippery and dangerous and put up signs to warn, but the plaintiff didn’t see
the signs and slipped and fell.
The
plaintiff is unquestionably an invitee.
The warning says that the floor is slippery. Why doesn’t the plaintiff just recover, given
that she’s an invitee? It turns out that
because there was an unreasonable risk of harm, the signs were not sufficient.
How
does the cost of preventing an accident weigh against the risk? From a policy perspective, is there something
that could be done to make the place safe, or is that simply not possible?
You
shouldn’t see a lot of food on the floor in a supermarket. They need to either warn or make safe, but it’s
impossible to effectively warn because a place like that it full of signs to
distract you.
On
the side of the nursery owner: well, all the other nurseries do like I do, so I’m
okay too. But you can have a widespread
custom that’s bad and thus a negligent custom.
Child
trespassers
If
you have something on your property that’s dangerous but likely to attract
children to come and play, you must make it safe. It used to be that the child had to be
attracted by the thing that hurt him (“attractive nuisance doctrine”).
If
it’s foreseeable that children will trespass and encounter a dangerous
condition, you must make the condition safe or you’ll be liable.
§ 339. Artificial Conditions Highly Dangerous To
Trespassing Children
A possessor of 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 is one upon which the possessor knows or has reason to know
that children are likely to trespass, and
(b) the condition is one of which the possessor
knows or has reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to such children,
and
(c) the children because of their youth do not
discover the condition or realize the risk involved in intermeddling with it or
in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the
condition and the burden of eliminating the danger are slight as compared with
the risk to children involved, and
(e) the possessor fails to
exercise reasonable care to eliminate the danger or otherwise to protect the
children.
Firefighter
Rule
We don’t
know exactly what risks firefighters will encounter, so they’re licensees. It’s too burdensome to have to have a
landowner pay for the injuries of emergency folks.
Also,
emergency people are, at least in theory, paid extra to compensate them for the
extra risk.
Rowland
v. Christian
This
case is in opposition to the notion of the classifications we’ve been studying
to this point. Is it better to have
clear rules that people are aware of and can condition their behavior on, or
shall we determine this on a case-by-case basis?
How
come the plaintiff does not win as a licensee with traditional
classifications? Under a standard
licensee analysis, could the plaintiff have recovered? In
A
number of courts followed Rowland after it was decided, but since 1992,
no court has followed Rowland and many have gone back to the old
classifications.
The
landowner must use reasonable care. Will
this result in unlimited liability? The
majority says no.
Strict
Liability
For
animals, there is generally not strict liability for domestic animals but there
is for wild animals. How come? What justifies the different rules? Why do we treat them differently?
It’s
another cost-benefit analysis situation.
Wild animals are risky to keep around because they may cause harm. Taking extra precautions doesn’t really make
much difference. They will be dangerous
no matter how many precautions you take.
What
if a domestic animal shows a dangerous propensity? Then there may be strict liability if that
animal hurts someone. One you know, you
can’t really take precautions to prevent it unless you lock up the animal. This is a matter of what the owner of the
animal knows. The “one-bite” rule doesn’t
exist per se, but basically what it means is that after they bite once, you’ll
be liable for any injury that follows.
Is
this just negligence in disguise? In a sense, yes. We
look at cost versus benefit, but basically the cost (risk) is so high that no
benefit could possibly justify it.