Wednesday, July 14, 2010
4 – Special Duty Rules – Owners and Occupiers of Land (Trespassers)
4. Special Duty Rules – Owners and Occupiers of Land (Trespassers)
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
Last time in torts, we talked about Owners and Occupiers of Land - Licensees. Now we tackle Owners and Occupiers of Land - Trespassers.
A trespasser is one who enters or remains on the property in the possession of another without permission (express or implied) of the land occupier.
The duty owed to trespassers is very limited: There is a duty to refrain from willful, reckless conduct and if the land occupier knew or should have known that the plaintiff is present (or if the plaintiff is discovered by the land occupier to be in a position of peril, and failed to exercise reasonable care) then the landowner has a duty to use reasonable care.
Where the trespasser is a minor (child), the law generally requires some special type of protection. Restatement 339 states that “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 . . .” Sometimes this rule is referred to as the “turntable doctrine” or the “attractive nuisance doctrine.” The terms are a bit inaccurate since it would include more than a turntable (a playground prop) and it does not have to be a nuisance or something that has actually attracted the child. The key is to look at the condition that causes the injury, but not the type of activity.
Next: Special Duty Rules – Owners and Occupiers of Land (Invitees)
Professor Doug Holden
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