a [--Only Covers the First Month or So--]

8/7/2019 a [--Only Covers the First Month or So--]

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Torts II Outline

PROXIMATE CAUSE

3 bogus rules of foreseeability Rescue doctrine Second Injury Egg shell skull rule 1 & 2 are intervenin g cause rules

(1) Rescue Doctrine Allows an injured rescuer to sue the party which caused the danger requiring the rescue in

the 1 st place Four elements :

y (1) the defendant was ne gligent to the person rescued and such ne gligence caused the peril orappearance of peril;

y (2) the peril or appearance of peril was imminent;y (3) a reasonably prudent person would have concluded such peril or appearance of peril; andy (4) the rescuer acted with reasonable care in effectuatin g the rescue

Broad doctrine, applies to rescuers and third parties Accepted in all jurisdictions Rescuer must stillshow the D proximately causedhis injuries . Ne g acts of rescuer could relieve

ON A, if it supersedes ON A. But courts hardly ever find that ne g acts of rescuer superseded ON A.Policy: want to encoura ge people to help so give them a break. Le gal explanation : emer gency doctrine

so the rescuer isn t held to as hi gh an amount of care. Rescue doctrine does apply to products liability cases McCoy v. Ameri can Suzuki Motor Corp: Int er stat e, car in f ront o f McCoy wr eck s, McCoy hel p s cop ,

acci de nt c lear ed & McCoy hit a f t er cop leav es. ONA = Suzu ki s defectiv e v eh ic le. I C = d riv er sn eg,pa sse n ger sn eg, P s r es cu e, o ff ic er , h it & run driv er . Ct held ONA not too r em ov ed o f a cau se.

(2) Second Injury Rule The ONA will be liable for subsequent or second injuries to the P where the ONA s conduct

created the opportunity for those injuries to occur 3 situations :

y (1) Attempt to escape from dan ger created by D/ON A s negligence leaves the P in a positionvulnerable to a second accident

o H ypo: D runs into McClurg who br eaks l eg and bef or e he h as chanc e to g et out of th eroad a 2nd driv er hits him . 1st driv er is lia bl e for both injuri es . 2nd n eg actor isn t l et off th ehook th ey would just be jointly and s ev erally lia bl e for th e 2nd l eg .

y (2) Attempt to alleviate harm caused by D/ON A s negligence inflicts an injury that exposes the Pto medical malpractice & when that happens ON A will be held liable for initial injuries & medicalmalpractice injuries. Doctor would be J& S liable w/ ON A for medical malpractice injuries.


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o H ypo: P gets he p atitis fr o m bl oo d transfusi o n required after car accident, all o wed t o suedriver (no te 10 , p . 343)

y (3) Second injury caused by weakened condition resultin g from first injury/ON A exposes P tofurther injury as result of weakenin g condition

o H ypo: D caus es McClurg to br eak l eg, r ecov ering on crutch es, slips on crutch es & br eaksit again . ONA lia bl e for both br eaks if injury is d ee m ed a r esult of weak en ed condition

(3) Eggshell Skull Rule A D who negligently inflicts any physical harm on a person is liable for all physical

consequences that result, however bizarre or unexpected. Doesn t have to involve a skull, could be any sort of injury/dama ge If you do somethin g that wouldn t have caused serious injury to someone else but does to the person

b/c of defect, you are liable H ypo: stud ent turns in blu eb ooks aft er exam to prof essor, fly has bee n bugging prof essor, rolls up

book & swats at fly and n eglig ently hits stud ent on th e for eh ead, di es imm ediat ely b/ c of cong enital d ef ect . Rul e would hold prof essor lia bl e.

Public Policy K elly v . G winn ell: Z ak s erv ed G winn ell alcohol, l et G winn ell driv e, car accid ent injur ed K elly . K elly su ed

G winn ell & Z ak ( r espond eat sup erior) . I C of D s n eg driving & th e r esulting injury w er e for es ee a bl e, K elly was in z on e of for es ee a bl e risk from Palsgraf duty analysis .

Vast majority of courts have rejected social host liability for servin g of alcohol. Kelly case waseffectively overruled by NJ le gislature, imposed restrictions on social host liability. Except for servin g minors alcohol, there is liability in that situation.

And most courts do reco gnize liability for commercial vendors servin g alcohol Dram Shop Act creates cause of action of liability for commercial vendors who sell alcohol to a certain point.Enterprise theory of liability - social host has inability to spread the cost of liability, commercialvendor can spread amon g customers, they can assume that as a cost of doin g business.

Doctrine of Negligent Entrustment : if you provide a dan gerous chattel (gun, car, etc ) to a personwho you know or should know would be unlikely to use it safely, you would be liable

TN law pg 1 of SMy Old common law rule 57- 10 -101: con s um pti on of any alcohol i c bevera ge ra t her t han t he

furn is hi ng of any alcohol i c bevera ge is t he p roxi ma t e cau s e of i njur i es i nfli ct ed u p on ano t her byan i nt oxi ca t ed p er s on. Mo st st at es now have Dram Shop Acts .

y 57- 10 -10 2: jury must determine beyond a reasonable doubt (criminal std for burden of proof & not used in any other civil context ) that vendor s sale was proximate cause of injury/death &that vendor either (1) sold to person known to be under 2 1 who caused the injury/death asdirect result of consumption, or (2) sold to obviously intoxicated person who caused theinjury/death as direct result of consumption.


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DUTY O F CARE

W hen does one person owe a duty of reasonable care to another? Cardozo owe duty to prevent foreseeable risk to foreseeable plaintiffs H eaven v. Pender quote p g 403 says basically the same thin g In some situations even where harm is completely foreseeable, courts have wanted to limit

liability/duty based on policy consideration so they ve imposed either no duty or limited duties. But Cardozo s is general principle for most situations.

Three areas (pg 404)[ only cov erin g first 2 in class] Failure to Act the act of a 3rd party or a natural event has caused physical harm to P that D has

failed to take affirmative steps to prevent/ameliorate Negligent Infliction of Emotional Distress ne g act causes non-physical harm (emotional distress

or pure economic loss )

W rongful Life/ W rongful Birth Cases ne g act causes losses in birth or conception where thetraditional cate gorizations of personhood are incapable of bestowin g a cause of action

(1) Failure to Act Nonfeasance = doing nothing. H ypo:McClurg standing on F ront S t & s ee s an eld erly guy a bout to

st ep out into th e str ee t carrying a big bo x b locking his vi ew, truck was barr eling toward him, McClurg didn t y ell out & guy st epp ed out & was hit . Lia bl e? N o .

Misfeasance = affirmative wrongful conduct . I f in th e a bov e hypo McClurg y ell ed all cl ear! h ewould be lia bl e b/ c h e act ed wrongly .

Early common law drew a distinction b/t nonfeasance & misfeasance, no liability for nonfeasance b/cthere s no duty.

Rstmnt 314 [SM p. 2] : [ no]duty to act for protection of others - the fact that actor realizes orshould realize that action on his part is necessary for another s aid or protection does not of itself impose upon him a duty to take such action

Motive doesn t matter. H ypo: G ood swimm er a bout to sav e drowning p erson, r eali zes it s law prof essor that gav e h er bad grad e & chang es h er mind . Not lia bl e.

No duty to report to authorities. H ypo: G r ee r g ets mistak enly s ent email from two classmat es plotting to kill anoth er, duty for him to r eport to authoriti es sinc e th er e s not risk to him ? No .

Federal Patient Act that prevents hospitals from treatin g people who are brou ght there/show up therenow exists

H eg el v . Langsam [ p . 417 ]: Un iv ers ity did n t p rotect g irl who w as rap ed. Court ru l es n o duty b/cun iv ers ity s p urp os e is l ea rn ing , they h av e n o duty to re g ula te p riva te l iv es .

H ypo ( not e 1 a, p . 418 ): B igan entic ed fri end Y ania to jump into tr ench w / 8-10 ft of wat er & Y ania drown ed . B igan mad e no r escu e e ffort . No duty for B igan to h elp Y ania, ev en if lif e pr es erv er was right th er e & all h e had to do was kick it in . Court rul ed entic em ent to jump in tr ench wasn t misf easanc e b/ cY ania was a comp et ent adult .

L .S. Ayr es & Co . v . H icks [ p . 420 ]: 6 yr o ld b oy go t f i ngers c au ght i n e sc alat or & D un r ea so nabl y dela y ed s t oppi ng the e sc alat or . No evi den c e o f m is fea s an c e o n p ar t o f the D/that he ne gli gentl y


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created the risk. D owed P a duty b/c P was an invitee [people who go to businesses to be customersor with potential to be customers].

Four Exceptions to No Duty to Act (1) Special Relations that Create Duty:

y 2nd Rstmnt 314 A [SM p 2] : o Common carriers (buses, airlines, etc ) owe duty to aid and protect passen gerso Innkeeper/ guest o Business invitor/inviteeo Custodian/custodial char ge ( jailor/prisoner, school/student ) takes custody of person

that deprives them of normal opportunities for protectiony p. 421 notes :

o employer/employee (limited to course of employment & only applies when employee isevidently unable to look after himself )

o parent/childo husband/wife

(2) If D or Instrumentality Under Control of D Causes Harm to a P ( whether tortuously orinnocently ) , usually leaves them helpless etc, then the D has a duty to protect from furth e r harm .Even w /o spec i al relat i onsh i p bet w een boy/store, the D st i ll w ould have a duty because the i ri nstrumental i ty w as the cause of the harm.

(3) Duty to Eliminate Unreasonable Risk D Has Created ( even if innocently ) y Neg Injury By D: when the D by his own ne g injures another, there is general a greement that

he is then under a duty to take reasonable affirmative action to aid him.o H ypo: No duty to tr espass ers, but suppos e D s train runs ov er tr espass er on tracks ? Not

lia bl e for original harm, but if tr espass er is bl ee ding on tracks, D must com e to his aid or

h e is lia bl e for th e aggravat ed harm .o Rstmnt 322 [ SM p. 2] : if D knows that by his conduct, whether tortuous or innocent, D

has caused injury to make P helpless & in dan ger of further harm, the D is under duty toprevent further harm]

y Innocent Injury by D : if you create an unreasonable risk of harm, even if it s done non-ne gligently, you have a duty to act reasonably to eliminate or minimize the risk

o Dead cow/dead deer case&Rstmnt 321 [SM p. 2]o p . 422 not e 8 : driving down road at night & hit a d ee r, so d ee r carcass is now in th e

middl e of road, innoc ent on part of driv er, but driv er has duty to minimi ze th e risk by eith er g etting th e carcass out of th e road or warning driv ers .

o H ypo: if at gala, som eon e jostl ed p erson who spill ed th eir drink on stairs, th ey w er en t n eglig ent, but th ey hav e cr eat ed a risk so th ey hav e a duty to cl ean it up or notify som eon e to cl ean it up .

y At common law govt has immunity, unless they waive it. Federal tort claims act & many stateshave waived tort immunity. so it depends on the extent of the immunity bein g waived. undercommon law, no immunity. today, some rules waived includin g for dan gerous conditions on thepremises.

(4) Undertaking exception a duty to act may be imposed whenever the D assumes a responsibilityto act and such undertakin g increases the risk of such harm or is relied upon by the P to her detriment.

y Rstmnt 323 [SM p. 3] elements to be shown before exception applies :


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o (1) person undertakes to render services to another, either gratuitously or forconsideration, services which he should reco gnize are necessary for the protection of theother s person or thin gs

o (2) fails to exercise reasonable careo (3) person must suffer physical harmo (4) the D is liable only if : (a) failure to exercise care increased risk of the harm, or (b)

harm is suffered b/c of the other s reliance upon the undertakin g y p . 424 hypos:

o A. Crowley v. Spivey : D grandparents of decedent children undertook to supervisemother s visitation & mother killed them when left alone. Ds held liable.

o B. Mor gan v. Yuba County : sherriff s dept failed to warn as promised of release of dan gerous prisoner& he killed Mor gan.

y G ood Samaritan statutes desi gned to protect good Samaritans from some liability whentryin g to help.

o TN [SM p. 4]: any person includin g doctors etc who in good faith with no char ge assistsin emer gency care shall not be liable to such victims or persons receivin g emer gencycare for any civil dama ges except such dama ges as may result from the grossne gligence of the rescuer

Duties to protect against intentional harm by 3 rd persons Duties to prevent intentional or criminal attack by 3rd persons almost always arise from special

relationships, can also arise from an undertaking thou gh 2 different kinds of special relationships have been held to give rise to this duty to prevent harm :

y SR between the D & the victim then duty arises to exercise reasonable care to protect thevictim (314 A)

o any busin ess invitor ow es duty to busin ess invit ee to prot ect th em from criminal attack y SR between the D & the source of harm/criminal , traditionally a duty to control the

source of harm.o par ents hav e duty to try to act r easona bly to control childr en of th eirs th ey know hav e

dang erous prop ensiti es .o m ental hospital hav e duty to act r easona bly to control dang erous m ental pati ents

T arasoff v . Re g ents of Univ ersity of California: Dr . Moor e h a d SR wit h P o ddar bu t no r elations hi p w it hvi cti m T arasoff , so bas ed on prin ci pl es a bov e/ la ws t hat exist ed til t his ti me he s ho ul d h av e du ty to control Po ddar , m ay be att emp t to hav e h i m invol untarily co mm itt ed to me ntal hos pital .

y C A had passed statute that cloaked psychiatrists with tort immunity re gardin g decidin g whether

to commit someone or not. puts burden on psychiatrist to predict who will become violent &you don t really know so they d need to commit everyone. so control avenue was closed for Ps.

y Court found duty to protect the victim, dramatic extension of the law b/c they didn tknow her & had no relationship with her & didn t create the risk to her. Court said theduty would be satisfied by a warnin g telling Tarasoff that Poddar threatened to kill her

y Most states have accepted T ar aso ff but some such as FL have r ejected it. In T N pr inciple hasbeen r eco gnized T ur ne r v. Jo r dan ( 97) psychiatrist knows or reasonably should knowpatient is at risk of causing harm to 3 rd party he has duty to warn

R iss v . Ne w Y ork: R iss r ece iv ed th r eat s f or 6 m o nth s f ro m Pu gach, called p o li ce f or help & w as r ece iv ed w / i nd i ffer ence. T hen he called s ayi ng las t chance & p o li ce s t i ll di dn t lis ten. H e h ir ed so me o ne


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who threw lye in her face & partially blinded/disfi gured her. T hen police listened & gave her protection24 /7 for 3.5 yrs.

y G eneral rule is that police do not have a tort duty to protect the public unless anexception comes into play, even in cases where there s a specific identifiable threatagainst a person

y Basis for the decision is separation of powers doctrine. Court was sayin g it s not the judiciary srole to get involved in tellin g legislative branch how they should divide up their scarce resources

D eL ong v . E ri e County: D eL ong calls 911 ab out a b urg lar , d i spa t che r writ es d o wn in corr ec t add r ess s o po li ce d i dn t g et to he r & she was m ur de r ed

y Court ruled there was a duty because there was an undertaking of duty, exceptionto no duty rule.

y Not just by establishin g the call system but also by holdin g out the 911 service to be called bysomeone in need, & by takin g her call, she relied on their response & was killed as a result she could have called others for help if she knew they wouldn t come, her nei ghbor was copetc, she didn t leave the house

p . 436 not e 3 sh o uld T ara soff be ex t en ded to ot he r cont ext s o ut side of p hysic a l har m such a s a do ctor who disco ver s a pat ient ha s H I V, sh o uld he c onta ct p eop le he t hin ks c o uld be ex po sed to prot ec t t hem? D r sh o uld ex p la in to pat ient t hat pat ient ha s a du t y to t ell.

(2) Negligent Infliction of Emotional Distress Courts are very reluctant to go here Policy reasons : don t wont everyone who gets upset to file a

lawsuit If there was ne gligently inflicted physical harm the P could get parasitic damages (emotional harm

as parasitic dama ge of physical harm ). T he requirement of physical harm was watered down to therequirement of physical impact (touchin g) upon the person of the plaintiff.

Two exceptions to physical impact rule: y (1) Negligent mishandlin g of corpsesy (2) Mistaken death tele grams

D al ey v . L aCroi x [ D ir ect vi ct i m NI ED ca se] : D ha d c ar cra sh th a t c a used e l ect ri c p ol e t o f all a nd c a useexp lo sio n o uts i de P s wi nd o w ca us i ng pro pe r t y da ma ge. Two P ch il dr en c lai m em o t io nal di st r ess.y Court abandoned impact rule & submitted to jury.y This court allows recovery for NI ED when there is a definite & objective physical injury

produced as a result of emotional distress proximately caused by the D s ne g conduct. Most states includin g TN have abolished the impact rule. So then what is a physical consequence ?

y W e just don t have an answer to this question. T here is no specific test but the modern trend isthat the condition or illness for which recovery is sou ght must be one susceptibleof objectivedetermination, only reactions of reasonable persons absent specific knowled ge of P s sensitivitiesare covered, standard of conduct is the objective standard

Fear of Future Harm Cases D ne gligently exposed P to somethin g toxic that is known to cause disease. P claims to be livin g in fear

of contractin g the disease. Should this be a cause of action under NI ED? W hat if you recovered for NI ED and then later developed the cancer, could you sue a gain for the

cancer? Yes, probably. Courts have been reluctant to award dama ges purely for future harm, but some courts have. P could only recover if they showed it was more likely than not ( with expert testimony ) that they

would actually get cancer 40% not enou gh for recovery


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Some courts won t award dama ges for the fear but will allow expenses for going to the doctor everyyear to get tested medical monitoring expenses

People who were ne gligently or potentially exposed to H I V courts generally let recover for feary maybe social sti gma plays a part y H I V is the only thin g that causes AIDS, but many thin gs can cause cancery H I V affects lifestyley Negligent exposure to H I V often occurs in a medical environment and only person would be

affected versus the entire community in carcino genic cases W illiamson v . W ald en: woman cl eanin g Dr o ff i ce, e m pty in g tras h & get s s tuck w i th lan cet th a t w asn t

dis pos ed in bio haza rd con t ain er li ke i t s ho uld v e bee n . s he s ue s wi th fe a r th a t s he c o uld con tra ct H I V.wo uld wan t t o kno w i f s he w as a ctu all y exp os ed had lan cet bee n us ed on som eon e w i th H I V. herethere w as no proo f o f a ctu al exp os ure b/c the lan cet h ad bee n dis pos ed o f. e v en wi th the small chan ces he said s he w as wo rri ed , but mos t c o urt s wo uld reject th a t and wo uld requ i re a ctu al exp os ure, but NJco urt here said s he c o uld rec ov er an ywa y. but c o uld onl y rec ov er f o r fe a r in a limi te d windo w o f an xi ety per iod co up l e o f ye a rs pro ba bl y.

T hing v . L a Chusa ( p 456 ) [Bys t an der NI ED cas e] : y Once courts abolished impact rule they were faced with problem of what to do with bystandersy H ypos (what s ho uld the law be ):

o Mother & dau ghter crossin g the street, drunk driver comes around corner ne gligently speedin g,mother tries to pull dau ghter to safety but is unsuccessful in doin g so. should mother be ableto sue for emotional distress? [wron gful death does not include emotional distress but isanother claim that s out there]. most people think so

o Mother sittin g on porch, little girl playin g in front yard of quiet residential area, little girl s ballrolls into street & mother tells her to stop & look both ways, she looks both ways, drunkdriveway comes flyin g around corner & hits dau ghter, mother sees it from the front porch.should she be able to cover? most think so

o Same facts but mother goes inside to get a sweater & hears loud noise & goes outside & seesdau ghter in a pool of blood unconscious under the car. recover?

o Mother at work when it happens & gets a phone call, she rushes to hospital & there s herdau ghter in banda ges, unconscious, on I V, etc.

y Pure foreseeability analysis doesn t work, b/c it s foreseeable that if you kill someone then someoneelse will suffer.

y Line to draw for whether they saw it or weren t present y Line to draw for relationshipsy T hing (minor ) was injured when hit by car operated by D. Mother was nearby but didn t see or hear,

dau ghter told her about it & she rushed to scene where she saw child.y Court held mother could not recover herey Court admits that line drawin g is arbitrary, court says they have to be drawn in order to impose

acceptable liability without bein g disproportionate to D s actions.y Court said only those who contemporaneously experience could recover in bystander cases,y not enou gh to just witness the event, there is also the relationship requirement someone closely

related to the victim by blood or marriage y Options

o Draw arbitrary lineso No liability at all, bar the claimso Draw no lines, apply general ne gligence standard

y C A originally adopted zone of danger test would have had to personally be within the physicalzone of dan ger created by D s ne gligent conduct.

y Dillon v. Legg [know by name!] created idea of limited foreseeability approach, imposed threeguidelines for court to look at :

o whether P was located near the scene of the accident


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o whether the shock resulted from a direct emotional impact upon P from the sensory &contemporaneous observance of the accident

o whether P & the victim were closely relatedy Dillon v. Le gg gave 3 part test, guidelines were arbitrary so cases always expanded them. Thing came

along to make those rules in Dillon fixed.y ** If this issue came up on exam, discuss both Dillon & T hing, but basic test is on p g 461: a P may

recover damagers for emotional distress cause by observing the negligently inflicted injurya third person if, but only if, said P: (1) is closely related to the injury victim, (2) is presentat the scene of the injury-producing event at the time it occurs and is then aware that it iscausing injury to the victim, and (3) as a result suffers serious emotional distress areaction beyond that which would be anticipated in a disinterested witness and which isnot an abnormal response to the circumstances

y Options/Testso Impact Rule o Zone of Dan ger o Dillon/T hing o Ban all claims o Allow all claims

y Regardless of NI ED, there are other options such as wron gful death action & survival action y T N abolished the impact rule, abolished the requirement of showin g physical consequences flowin g

from the emotional distress, adopted general ne gligence approach to these cases, but did say you haveto have close relation (Esten )

o Camper v. Minor : P drivin g cement truck, 16 yo girl ne gligently ran stop si gn & he hit & killedher. H e filed NI ED case a gainst her estate. T N supreme court allowed the claim even thou gh Palleged no physical consequences. T his was direct victim case.

o Esten case (2008) mother received call that child was injured in car accident & was at theschool, so she took other 2 kids & rushed to school & child was still lyin g on ground, she alle gedher & 2 children suffered distress. TN supreme court said they had a claim even thou gh theyweren t at the scene.

DUTY O F OW NERS/OCCUPIERS O F LAND

Injury Off the Premisesy W hat duties are owed by owners/occupiers of land to those that are injured outside the land? y Common law : no duty to protect a gainst harm outside the land caused by natural conditions on the

landy Modern trend is to impose general duty of reasonable care under the circumstances for conditions on

land that cause harm to persons off the land (blur the line between artificial & natural conditions )

Injury On the Premisesy Distinction based on whether entrant was trespasser, licensee, or Inviteey Sheehan v. St. Paul & Duluth Ry. Co.

o G enerally there is no duty to trespasser, but there s an exception thata duty is owed oncethe trespasser is discovered. Duty arises at the moment of discovery

o P was walkin g on tracks & got foot cau ght & train ran over it o H ypo : what if train operators were playin g poker instead of operatin g train? it would be

ne gligent, but they would not be liable because there was no duty they only owe a duty once


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they actually discover trespasser, they have no duty to try to discover him, it doesn t matterw hy they didn t discover him

o Once Ds discovered P they owed a duty of reasonable care to prevent the harm o Many of these rules come from Jud ge H and analysis, tryin g to keep landowner from hi gh

burden o G enerally when a duty is owed to a discovered trespasser, it s two part:

Reasonable care to avert harm from dan gerous activities [activity = on going operationlike a train]

Duty to warn only dan gerous known non-obvious conditions [condition = lyin g in wait] y T his is true for both trespassers and licensees, for invitees there may be the duty

to fix the dan gerous conditions o 2ndexception - frequent trespasser exception (footpath ) if you know trespassers

frequent a certain portion of your land then a duty may arise, if so it will be the same as dutiesowed to discovered trespassers.

o 3 rd exception tolerated intruder exception if you know trespassers are comin g ontoyour land and you don t do anythin g to keep them off then you may be deemed to havetolerated them and the same duties will arise

o G enerally for trespassers the condition would have to be actually known, but for licensees it would be known or should have known .

y Barmore v. Elmore [p 489 ] o Trespasser someone who s on the land w/o permissiono Licensee enters land with owner s permission for own purposes , traditionally hi gher

duty to licensee than trespassers. Example is social guest, even if they are expressly invited.o Invitee enters land in furtherance of owner s businesso G enerally owe a duty only to trespassers that are known, but you owe duty to licensee that is

either known or you should reasonably expect to be there. Duties owed to both areessentially the same ( as listed above ) .

o Barmore went to Elmore s house to discuss lod ge business, Elmore s son came in with steakknife & chased Barmore, Elmore tried to hold back son but son got loose & stabbed Barmore.

o Court decided that Barmore was a licensee.o Social guests are considered licensees b/c they are there for their own purposes &

companionship (even tho land owner also gets that benefit ) .o Old common law rule.o T here is a duty to licensees, but there was no breach of duty here b/c the son wasn t a known

dan gerous condition, he hadn t harmed anyone in a lon g time & they had no reason to know hewould go cra zy on that ni ght.

y Campbell v. W eathers [p. 49 2] o Invitees are the most important cate gory, owed the hi ghest duty.o For invitees there is the duty to exercise reasonable care to make the premises safe ,

often includes actually fixin g the dan gerous conditions throu gh affirmative steps, may includeduty to inspect the premises, to foresee how the property may be used by invitees to anticipatedan gers & eliminate them, to protect from harm from third persons.

o Limited duties to trespassers & licensees, but to invitees is general duty of reasonable careunder the circumstances.


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o W eathers owns store, Campbell was frequent visitor, came in on one day & didn t buy anythin g,went to use bathroom & stepped on open trap door.

o Court held he was invitee , just b/c he didn t buy anything at that time doesn t meanhe s not invitee , he s purchased in the past & may in the future. person may go in w/ nointention to buy & see somethin g they like & buy it.

o Anyone who is on the premises to confer an economic benefit upon the owner [ p.493 ]. either express or impliedly invited onto the premises in connection with thebusiness carried on by that person

o Child could be considered invitee, parent could buy somethin g for the child, child could buy forself or in the future, maybe parent can t come to store w/o child

o store advertises first 100 get free visor, person goes in just for visor w/ no intention topurchase, they are invitees b/c they could decide they like somethin g & buy it

o person goes into store to get chan ge for $ 1, still invitee o if you already have to make premises safe for person who comes in to buy thin gs then there s

no hi gher burden to make it safe for anyone who comes in for bathroom etc. o generally anyone who comes onto business premises when they are open to the

public would be considered an invitee . even thou gh p 493 says if he had no intention topresently or in the future be a customer, that would be hard to prove that he d never buyanythin g or chan ge his mind about buyin g anythin g.

y W helan v. Van Natta [p. 49 5] o P bou ght ci gs and asked for box, D told him to go to backroom and get it, li ght is off & he falls

down stairs.o D didn t warn of the dan ger, he said li ght was on earlier o T C said P was a licensee so no duty to provide a safe place o Issue is under what circumstances can individual s status chan ge? o P was invitee when he bou ght ci garettes, if he went into back w/o permission he d become a

trespasser. H e went back there lookin g for box he became licensee. For more merchandise,he d still be invitee.

o Status can change if they go outside the scope of their original status.o For licensees there is duty to warn of known, non-obvious dan gerous conditions.o At restaurant, go into restroom & injure on broken faucet still invitee o Look at business purpose of premises o G o to dru g store & ask to use restroom, they say it s employees only, but P talks them into

lettin g him use it & he gets injured. licensee, employees only restroom is not considered part of the scope of ori ginal invitation. if he goes in w/o permission, status chan ges to trespasser.

o Note 7 duties to protect a gainst criminal attack from 3rd person.

Child Trespassersy Attractive Nuisance Doctrine

o when a landholder sets before youn g children a temptation that he has reason to believe willlead them into dan ger, he must use ordinary care to protect them from harm [Keffe v.Milwaukee].

o Originally one requirement was that the child had to actually be lured onto the premises b/c of the dan gerous condition


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o Most state, includin g T N, no lon ger require that the dan gerous condition attract the child ontothe property, instead the law in most jurisdictions is Rstmnt Sect. 339 [p 499 ].

Limited to artificial conditions , no opinion on whether it should apply to naturaldan gerous conditions on land. Burden of protectin g against natural conditions is greater.

Five Factor Test [ analyze all five]y the place where the condition exists is one upon which the possessor knows or

has reason to know that children are likely to trespasso has reason to know means the person had actual facts/ knowled ge that

would put reasonable person on notice that children trespass, different than should have known which may impose duty to inspect. T hings likeseein g children, bike tracks, candy wrappers, location next to elementaryschool, etc

y the condition is one of which the possessor knows or has reason to know andwhich he reali zes or should reali ze will involve an unreasonable risk of death orserious bodily harm to such children

o dan gerous conditions not just conditions that can be har mf ul to a chi l d,b/c a lm ost anythin g can har m a chi l d

y the children because of their youth do not discover the condition or reali ze therisk involved in intermeddlin g with it or in comin g within the area madedan gerous by it

y the utility to the possessor of maintainin g the condition and the burden of eliminatin g the dan ger are sli ght as compared with the risk to children involved

y the possessor fails to exercise reasonable care to eliminate the dan ger orotherwise to protect the children.

Persons Privileged to Enter Irrespective of Landowner s Consenty

Some people are allowed to come onto your land whether you want them to or not y Legal license to come onto your landy Many courts have considered these people invitees, which means duty to keep property safe &

eliminate conditions these people could foreseeably encountery Law/ Courts hasn t been so nice to firefi ghters & policemen, generally treated as licensees, firefi ghter

rule , reasonin g is that these types of people are already gettin g extra compensation b/c of theha zardous nature of their job (workers comp, etc ) , know there are risks of the job

y T hey show up at unexpected times, burden would be the same as keepin g the place safe fortrespassers

y 5 approach es p . 501

Rejection or Merging of Categoriesy Rowland v. Christian

o P was at D s house as social guest (licensee ) , asked to use bathroom and severed tendons&nerves on cracked handle of cold water faucet.

o T o licensees is duty to warn of known non-obvious dan gerous conditions o Court rejected distinctions everytime landowner is aware of a concealed condition involvin g in

the absence of precautions an unreasonable risk of harm to those comin g in contact with it andis aware that person on the premises is about to come in contract with it, the trier of fact canreasonably conclude that a failure to warn or to repair the condition constitutes ne gligence

o Landowners have general duty of reasonable care to everyone


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