Torts Class Notes 11/19/03


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 California, no, because the rule was a little more stringent and didn’t allow recovery in this situation.  The California Supreme Court had to either send the plaintiff home with nothing or else change the law.  They decided to change the law.  They decide to go with your basic duty of reasonable care and the Learned Hand formula.


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.


Back to Class Notes