Trespassers

1. Trespassers possessor3possessor3

2. Can you shoot them? Katko v. Briney (78)

3. Do you need to post warnings to protect them? Originally, No. But now significant exceptions if POL: knows a trespasser is dangerously close to a dangerous artificial condition (�known trespasser�) knows trespassers constantly trespass in a limited area near a dangerous artificial condition (�constant trespassers�) child trespasser (or licensee) DISCOVERED T: RS=known trespasserDISCOVERED T: RS=known trespasser

4. Duties to Protected Ts Same for Constant-T and Known-T Very similar to duty owed to Licensee: Warn (use reasonable care to warn) of Hidden dangers of Death/Serious Bod Harm not liable if �open & obvious� swimming poor & teenage trespasser Known to Possessor of Land Artificial Conditions on the Land ARTIFICIAL: RS: created or maintained by D (but cts=loose) aware of shack!ARTIFICIAL: RS: created or maintained by D (but cts=loose) aware of shack!

5. When is the duty to warn owed? Known (or �Discovered�) Trespassers aware of T�s presence at time aware of proximity to dangerous artificial condition Aware of Constant Ts in Limited Area. Aware of trespassing by people constantly in limited area example: shortcut to lake assuming no implied consent children may get even more protection under �AN�

6. Recap Protected Trespassers? Constant Trespassers and Known Trespassers Kids (later) Duty owed? Warn Artificial Hidden risk of Death/Serious Bodily Harm Known ARTIFICIAL: RS: created or maintained by D (but cts=loose) aware of shack!ARTIFICIAL: RS: created or maintained by D (but cts=loose) aware of shack!

7. Problem 15 (257) Will duty to Known Trespassers apply? Was Barry aware that Allen was trespassing near a dangerous condition? NO-Not aware of Allen on the day of accident Will the duty to warn Constant Trespassers apply? Aware of constant trespassing? Need to be aware that Allen trespasses? Limited area? AWARE OF CONSTANT TS? He�s aware of Ts; question is whether �constant� enough to make warning reasonable. JURY Q.AWARE OF CONSTANT TS? He�s aware of Ts; question is whether �constant� enough to make warning reasonable. JURY Q.

8. Prob. 15: Constant T If C-T duty applies, any breach? Warn? Artificial? Hidden risk of Death/Serious Bodily Harm Known? What if Barry had inspected & knew? What if a reasonable p would have? What if Barry had posted a sign? DID BARRY KNOW? Unlikely to prove--denies it; hadn�t inspected in a while; not apparent from above IF BARRY HAD INSPECTED & KNEW? Duty to use reasonable care to warn--did nothing here what would suffice? Saw-horse over boards? Sign? WHAT IF A REASONABLE PERSON WOULD HAVE INSPECTED? THEN breach of duty to INVITEE NO need to inpect for Licensees and Ts. WHAT IF BARRY HAD POSTED A SIGN? Was sign adequate? Yes, if cd by understood by anticipated Ts (kids), then no breach of duty under CT doctrine, but CHILD TS more duty. Warning may not sufficeDID BARRY KNOW? Unlikely to prove--denies it; hadn�t inspected in a while; not apparent from above IF BARRY HAD INSPECTED & KNEW? Duty to use reasonable care to warn--did nothing here what would suffice? Saw-horse over boards? Sign? WHAT IF A REASONABLE PERSON WOULD HAVE INSPECTED? THEN breach of duty to INVITEE NO need to inpect for Licensees and Ts. WHAT IF BARRY HAD POSTED A SIGN? Was sign adequate? Yes, if cd by understood by anticipated Ts (kids), then no breach of duty under CT doctrine, but CHILD TS more duty. Warning may not suffice

9. Duty to Child Trespassers If Possessor knows kids are likely to T, then duty to Protect (use reasonable care to protect) RS says only if burden is slight compared to risk warnings not necessarily sufficient Known Serious Dangers Hidden Artificial If Barry had posted a good sign? KIDS? Allen is okay at 10. Some cts max at 14; others ask if child cd appreciate danger. IF BARRY HAD POSTED A SIGN? Jury questions whether more was needed (F kids would ignore) COURTS PROTECT CHILD LICENSEES WITH THIS DUTY TO PROTECT OF KNOW, SERIOUS, HIDDEN DANGERS, TOO called ATTRACTIVE NUISANCE, but NEED NOT BE A LURE.KIDS? Allen is okay at 10. Some cts max at 14; others ask if child cd appreciate danger. IF BARRY HAD POSTED A SIGN? Jury questions whether more was needed (F kids would ignore) COURTS PROTECT CHILD LICENSEES WITH THIS DUTY TO PROTECT OF KNOW, SERIOUS, HIDDEN DANGERS, TOO called ATTRACTIVE NUISANCE, but NEED NOT BE A LURE.

10. Why recognize any duty to Trespassers? Life>property? Burden slight merely warn known Ts of known, hidden, serious, artificial risks NO duty to inspect, repair or warn of the obvious. Greatly outweighed by serious risks Recall RS�s attempt to limit duty to �protect� child trespassers in this way also.

11. Loose Ends Active Operations=duty to use reasonable care for safety of all visitor categories we have discussed (I, L, CT, KT, Child) example: driving ATV on property Adjoining Public Ways=reasonable care in active operations and artificial conditions some courts include trees in urban areas NB: THIS IS VERY SIMPLIFIED: each of these categoroies has muchmore detail. Trees: Missouri, too.NB: THIS IS VERY SIMPLIFIED: each of these categoroies has muchmore detail. Trees: Missouri, too.

12. Changing Social Norms Old: it�s their own fault for trespassing. New: modest effort is required if serious risk. duty to warn of known, serious, hidden danger in artificial condition. Kids=warning may not be enough Result: often a duty to trespasser; for kids, could be substantial. Too far??? Result: still okay to think �damn it, the kids are playing around the old well with the rotten cover� but also must say �I better get out their and fix it or someone will get hurt�. Result: still okay to think �damn it, the kids are playing around the old well with the rotten cover� but also must say �I better get out their and fix it or someone will get hurt�.

13. Rowlands v Christian (296) Facts? Status of visitor? What is common law duty to him? What element of the duty is most likely in dispute here? What test does court use instead of traditional �status-based� rules? Can the jury consider status of visitor? NEW TEST: Reasonable man in view of the probability of injury to others.NEW TEST: Reasonable man in view of the probability of injury to others.

14. Apply Rowlands to Prob.15 common law? P=Trespasser=needs to prove D knew of dangerous condition (no duty to inspect) maybe a directed verdict for D Rowlands=duty to use reas care. No d.v.--instead a jury question did reasonable care call for an inspection? jury can consider that P was trespassing COMMON LAW: Possessor denies knowledge; no proof contra ROWLANDS: STATUS OF VISITOR? But all life is equally valuable? Cannot discount safety precautions because a T? Jury will do so! (but can consider facts of case, so still less arbitrary than fixed rule) Really only should consider burden imposed if LO has to guard against a risk to all Ts (has to inspect and fix despite efforts to keep Ts off!)and extent to which Ts were foreseeable (yes, here)COMMON LAW: Possessor denies knowledge; no proof contra ROWLANDS: STATUS OF VISITOR? But all life is equally valuable? Cannot discount safety precautions because a T? Jury will do so! (but can consider facts of case, so still less arbitrary than fixed rule) Really only should consider burden imposed if LO has to guard against a risk to all Ts (has to inspect and fix despite efforts to keep Ts off!)and extent to which Ts were foreseeable (yes, here)

15. Rowlands v. Status Rules Why abandon categories? Life of Trespasser equally worthy of protection status is too poor a proxy for foreseeability, burden, etc. Reasons to keep the categories? status matters (not equally worth protection) specific rules=more guidance, predictability traditional rules=accumulated wisdom too fundamental a change for courts (see Leg.) ABANDON: 1. LIFE NOT LESS WORTHY(262), more regard for human safety today (260 [really another expression of life>property] 2. TOO POOR A PROXY FOR unforeseeability and burden or other factors that should determine liability like fairness, deterrence or insurance CASE-BY-CASE REASONABILITY IS BETTER. DISSENT? 1. STATUS MATTERS 2. LEGISLATURE IS BETTER 3. SPECIFIC RULES give more guidance and predictability. 4. Specific rules reflect ACCUMULATED WISDOM; improve piecemeal. 5. Floodgates. (last 2 - Younce, 264)ABANDON: 1. LIFE NOT LESS WORTHY(262), more regard for human safety today (260 [really another expression of life>property] 2. TOO POOR A PROXY FOR unforeseeability and burden or other factors that should determine liability like fairness, deterrence or insurance CASE-BY-CASE REASONABILITY IS BETTER. DISSENT? 1. STATUS MATTERS 2. LEGISLATURE IS BETTER 3. SPECIFIC RULES give more guidance and predictability. 4. Specific rules reflect ACCUMULATED WISDOM; improve piecemeal. 5. Floodgates. (last 2 - Younce, 264)

16. More on the Choice of Approach How do roles of judge and jury differ? Henderson�s complaint? Better view? HENDERSON: NO GUIDANCE = no �law� [argument for more specific rules, ala Holmes, 184-86). HENDERSON: NO GUIDANCE = no �law� [argument for more specific rules, ala Holmes, 184-86).

17. Today most states=still 3 categories large minority collapse Invitee/Licensee both groups are owed reasonable care small minority collapse all 3 per Rowlands into single duty of reasonable care.