Prosser, p. 69-70
Facts: The defendant failed to remove a post as agreed, and the plaintiff ran into it on his mower and died. The trial court dismissed the claim on the basis that it was a negligence claim rather than a trespass claim. The plaintiff appealed.
Issue: If you leave an object lying around on someone else’s property and they get hurt, can you be held liable for trespass?
Rule: The Restatement says that “trespass by continued presence” may lie if consent of some object’s presence has been terminated.
Analysis: The court uses the Restatement’s rule to find that the facts fit the tort of trespass, for which governmental immunity does not apply.
Conclusion: The court reversed the verdict and remanded for further proceedings.
Notes and Questions
1. There may be trespass if you either enter a property under false pretenses or sort of “wear out your welcome” by doing something the property owner doesn’t approve of.
2. You need not enter the land illegally to be found guilty of trespass, but you must be found to have failed to leave after given notice that you were no longer welcome.
3. On the one hand, we don’t want to intrude upon the private use of private property, but on the other hand, we don’t want to unnecessarily undercut community connections by forcing people to be extra wary when guests in other people’s homes.
A. Again, when you commit an intentional tort, you are responsible for any damages, even those that you couldn’t have foreseen.
B. This somewhat expands the boundaries of one’s property as far as carriers go.
C. Again, watch out when you commit an intentional tort! You could be liable for anything and everything that follows!
5. Some people must open their facilities to the public without discrimination.
A. So all places of public accommodation must accept people without discrimination.
B. If you own lots and lots of property, it may effectively become public property. In some jurisdictions, free speech may be exercised on private property.