Page 19 Flashcards
What is the “open and obvious danger” doctrine?
At common-law landowners have no duty to warn about dangerous conditions that are open and obvious. Modernly comparative fault often applies
If there is an open trap door in a living room, would that be obvious enough for the open and obvious danger doctrine?
Probably, so there would be no liability if someone fell in
How are child trespassers treated?
- activities: same as adult
- artificial conditions: reasonable care to prevent injury for dangerous conditions or from dangerous machinery that children wouldn’t realize the danger of
- natural conditions: same as adult
What do land possessors have to know/should know with regard to children in order to be liable for their trespass?
That they are likely to trespass on that part of the land
When does the heightened duty for child trespassers not apply?
When the danger is obvious even to kids
What is the child entrant doctrine?
This bars recovery against a child for damage to property. You don’t have a duty to discover a trespassing child, but if you do, then due care is owed to warn or protect him from artificial conditions that risk death/GBI as long as the following exist:
- condition is a foreseeable risk of unreasonable danger to trespassing kids
- it is foreseeable that children would likely trespass where the condition is
- the child trespasser is unaware of risk
- the risk of danger of the condition outweighs its utility
In order for the child entrant doctrine to apply, do all four of the conditions have to be present?
Yes
What are the four major conditions of the child entrant doctrine?
- Condition is a foreseeable RISK of unreasonable danger to trespassing child
- FORESEEABLE that children are likely to trespass where condition is
- Child trespasser is UNAWARE of the risk
- Risk of danger of the condition OUTWEIGHS the utility
What is required for the first condition of the child entrant doctrine?
Defendant knows or reasonably should know that the condition exists and that it involves an unreasonable risk of death or serious bodily harm to kids
Does D have a duty to inspect the land to discover unreasonable risks under the child entrant doctrine?
No, this doctrine only applies if he knows or should know of the condition
If the danger is something a child would ordinarily be expected to recognize, is that a foreseeable risk?
No, children that are old enough to play without parental supervision are expected to recognize the danger represented by ordinarily dangerous things
What are some of the dangers that children are expected to know?
- water can produce drowning
- fire can produce burns
- heights or holes can produce falling
What is required under the second condition of the child entrant doctrine?
If defendant has no reason to anticipate children are likely to trespass, the heightened standard of care is not triggered
How does foreseeability come so that a landlord should know that kids are likely to trespass where a condition is?
- from knowledge of past trespassers
- proximity to places that kids are likely to be
- accessibility
- locations near parks or playgrounds, on or near streets, or easily climbed areas
What is required for the third condition for the child entrant doctrine?
Because of the child’s age or immaturity they don’t discover the condition or appreciate the danger that it represents
What is the test for the third element of the child entrant doctrine?
Whether the condition or device that causes the injury is unfamiliar to a child of similar age
What are the three ways that would make it so the defendant didn’t owe a heightened duty to prevent injury to a child trespasser?
- if the child was aware of the condition
- understood the risks
- and was able to avoid it
If a child is aware of the condition, understands the risk, and is able to avoid it, then what is the child treated as?
An adult trespasser
If a child is trespassing on your land and is injured by moving machinery, water, or fire, how is the child treated?
As an adult trespasser because most children are expected to appreciate the danger these things
The younger the child, the more likely a condition will be considered what?
An attractive nuisance because he will be too young to realize the danger
Things like fire, bodies of water, falling from a height, and moving trains are known to children, so usually you don’t have a liability to children for them, but if what else is present, then you do?
Some other dangerous condition like a concealed section at the bottom of the pool
What is the requirement under the fourth element of the child entrant doctrine?
Utility must be high compared to the risk, so apply the learned hand formula
The duties that a lessor would have owed if he had kept possession continue until when?
For a reasonable time after he leases the land until the Lessee has had a reasonable opportunity to discover the condition and remedy it.
If a land transferor warned the other of a condition at transfer, for how long does the transferor stay responsible for that condition?
Only the time required to repair the condition, and after that, the Lessee’s own negligence is considered superseding
If a Lessor actively conceals a danger, how long does liability continue for?
Until the Lessee actually discovers the danger and has a reasonable time to remedy it
What is the duty owed by a Lessor with regard to dangerous conditions on the land?
He owes a duty to discover and repair them if he had reason to know or at least to warn the Lessee of them before transferring possession
What is considered a dangerous condition on land?
Any artificial condition that involves any risk of harm
What is an existing condition on land?
Any condition that could be potentially dangerous at the time of transfer and is likely to develop into real dangers later on
What are patent dangers?
Dangerous conditions that are reasonably apparent
Do patent dangers create a duty?
No, but latent dangers create a duty to repair or warn
What is a latent danger?
One that is concealed or hidden and involves any risk of harm and is known to the Lessor
The lessor doesn’t owe a duty for dangerous conditions that come about after the transfer unless what two things occur?
- he made negligent repairs
- he failed to make repairs he agreed to make in the lease
If a landlord promises something gratuitously, is a duty owed?
No, because the tenant’s reliance isn’t justifiable
If a landlord undertakes to make repairs and does it negligently, what is liable for?
Any injuries related to the negligence
If a landlord repairs a hot water heater and ends up scalding someone, what is he liable for?
Scalding injury
If a landlord does repairs, and ends up hurting someone through his negligent repair, does it matter if the repair was undertaken gratuitously or not?
No, he is still liable for the injury
What are the two different views about a lessor not making repairs he agreed to make in the lease?
- traditional: no liability
- modernly: lessee has a right to rely, so recovery is allowed
If a third-party comes onto leased land and is injured, what is the view about the landlord’s liability?
- traditionally: no duty
- modernly: owes the same duty to third persons as to the Lessee
Known and latent defects on leased property create a liability to whom?
Tenants and guests
If a guest slips on your icy steps that you knew were icy, does your landlord become liable?
Sometimes both you and the landlord are liable but generally if you had a reasonable opportunity to discover and remedy the condition, then that is considered a superseding breach on your part, and you are liable
What is the privilege of reasonable force for a landlord?
Landlords can use reasonable force to expel a trespasser or defend his property
