Pieper Landowner Liability Flashcards
Danger Invites Rescue Rule
A tortfeasor who has placed himself or another in danger is liable for injuries suffered by someone who comes to the rescue of another person in danger. A rescue is deemed foreseeable therefore, injuries arising therefrom are proximately caused by the wrong doer.
Cardozo’s statement on the rescue doctrine
The cry of distress is the cry for relief; foreseeability point of view and the rescuer is foreseeable
Strict product liability defect extends to
the rescue doctrine, also consider Res Ipsa Loquitur or defect in manufacturing
Landowner liability is generally with the
person who has possession of the property, which is not necessary the landowner
What is the rule in about 1/2 the states regarding tort liability for landowners
In about 1/2 the states tort liability arising from an existing dangerous condition depends on the duty owed to the person entering the land. The plaintiff’s purpose for the visit, generally, determines her status and duty owed. The plaintiff will be classified as either a “trespasser,” “licensee,” or “invitee”.
What is the most important element of a negligence claim against a landowner is the element of
Duty. Because the landowner has control over his land.
Trespasser Rule (MBE) not NY
A trespasser takes the land was he finds it, including existing latent dangerous defects, wild vicious domestic animals that may attack
Landowner owes a duty of care to a Trespasser Rule on the MBE
Generally no duty of reasonable care is owed to a person entering land who could be sued for trespass, EXCEPT to avoid intentionally or recklessly harming the trespasser, so the landowner cannot set traps or spring guns
A landowner cannot do what kind of conduct to a trespasser
The landowner cannot recklessly or intentionally harm the trespasser
A landowner (according to common law) that has vicious animals on their land, owe what kind of duty to a trespasser
According to about half the states, a landowner does not owe a duty except for wantoning to harm or injure a trespasser
According to the common law, once a landowner / possessor of land becomes aware of a trespasser’s presence what is the duty owed to the trespasser by the landowner
once a landowner / possessor of land becomes aware of a trespasser’s presence the duty owed to the trespasser by the landowner is a “duty of ordinary care,” arises to avoid injuring the trespasser and to warn him of any latent conditions posing a risk of death or serious injury.
Once the landowner/possessor becomes aware that a trespasser is on the land, the landowner has to take action to prevent harm or to take ordinary care to prevent harm to the trespasser
What is the duty owed by a landowner if he is aware that trespassers regularly cross onto his property
Regular trespassers require the landowner to take necessary precautions to act reasonably when there is some dangerous defect on the land, and either warn, correct, or prevent the trespasser from the dangerous condition.
A landowner’s duty is to act
reasonable under the circumstances, and make the premises as safe as a reasonably could
What is the rule when a landowner becomes aware that a trespasser is injured or trapped on his land
If a landowner discovers a trespasser that is either injured, trapped, helpless on the landowner’s property, then the landowner mUST act reasonably to take care and assist even though the landowner did not cause the harm in the first place. The landowner does not have expose himself to harm (no duty to rescue) but the landowner must do something, like call emergency services.
If we find someone injured and helpless on our property, the possessor has to do something, and has an obligation to act reasonable
Rule for Licensee (non-NY)
Licensee is a person who is invited with consent to the landowner’s property, and is non-business, such as friends, family, etc. The Licensee enters the land with the landowners express or implied consent for the licensee’s own personal purpose, such as friends, guests [solicitors with owner’s consent - no soliciting sign is trespassing].
What is the duty a landowner (non-NY) owes a licensee
A possessor owes a licensee a duty to warn ONLY of known latent dangerous defects
What is the landowner’s liability for injury to a licensee that is injured by a hidden danger of which the occupier was unaware?
There is NO liability, and no liability arises if a licensee is injured by a hidden danger or which the occupier was unaware, even though the landowner could have discovered by inspection
What is the landowner’s liability for injury to a licensee that is injured by a hidden danger of which the occupier was unaware, but could have discovered by inspection?
There is NO liability, and no liability arises if a licensee is injured by a hidden danger or which the occupier was unaware, even though the landowner could have discovered by inspection
What is the landowner’s responsibility or duty once the possessor learns of a concealed dangerous condition on his property
Once the landowner learns of a concealed dangerous condition on his property, the landowner has a DUTY to repair or warn the licensee of its existence.
The duty to warn of known dangerous defects, the actual awareness of the occupier is the linchpin on the MBE
What is the duty of care owed to an “invitee” by a landowner
An “invitee” gets a heightened duty of care, and the landowner has an obligation to maintain the premise in a safe condition, AND the landowner must actively look for dangerous conditions
An invitee for the purpose of land that is “open to the public” gets what duty of care
gets the greatest duty of care, and is a person who enters land that is (1) open to the general public, (so Do not focus on the reason why or the purpose the invitee is using the land, but that it is open to the public), and the landowner has an obligation to maintain the premise in a safe and actively look for dangerous conditions / heightened duty of care
When you have a question the MBE about invitee when the land is open to the public do not focus on
Do not focus on the reason why or the purpose the invitee is using the land, but that it is open to the public
An invitee (not open to the public) is defined as
a person who enters the private premises to bestow a benefit on the landowner/possessor
What are the two types of invitees (non-NY)
(1) a person who enters land open to the public, and (2) a person who enters the private premises to bestow a benefit on the landowner (cable, phone, etc.)
The duty owed to invitees requires that
The duty owed to invitees requires that possessor to reasonably inspect latent defects, lack of knowledge of the danger is not a defense because the duty owed to the invitee is to reasonably inspect those areas in which the invitee may come
What is not a defense for a landowner when an invitee is injured on his property
The landowner is NOT entitled to use “lack of knowledge” of the dangerous condition, and has a duty to inspect for dangerous conditions
A landowner owes a duty to an invitee to
The possessor must inspect the premises and uncover the latent defects.
What is constructive notice
A possessor is deemed to have constructive notice of a hazardous condition on the premises when:
(1) the condition is visible, AND
(2) has existed for a reasonably sufficient length of time to afford the possessor a chance to correct or remedy the dangerous condition
When you have a dangerous condition that a landowner was not given actual notice, the approach is
to use the constructive notice doctrine, and determine how long the condition was there, and not knowing is not enough
Rule on warnings about dangerous conditions
A warning may suffice to remove a danger UNLESS that condition remained “unreasonably dangerous” despite the warning in which case the possessor owes a duty to eliminate the unreasonable dangerous condition.
The warning MUST make the situation sufficiently safe.
A warning must
A warning must make the situation (which is being warned about) sufficiently safe that a person would understand the warning and risks
What is the rule in NY and a Majority of jurisdictions hold that warnings are not required when
In NY and a majority of jurisdictions that there is no duty to warn if the danger is “open and obvious”
What is the exception to no duty to warn when the danger is “open and obvious”
When the danger is open and obvious, the possessor/landowner has a duty to make the premises safe. Liability for injuries due to such conditions will be analyzed under comparative negligence standard
What is the limitation on liability to an invitee
Invitee liability extends ONLY to those areas that are open by the invitation, meaning only where the landowner both expressly and impliedly granted the invitee permission to go.
When an invitee goes outside the area opened by the landowner’s permission, the invitee becomes either
By going outside the authorized area, the invitee becomes a trespasser or licensee, depending on whether the invitee had the owner’s express or implied consent to go to the other areas, which were not part of the area that was a benefit or purpose to the landowner
So when you have an invitee on the landowner’s property, you must decide if the invitee
went outside the scope (beyond the scope) of the authorization by the landowner, so you want to follow if the duty changes from public to private or invitee to licensee
Trespassing Children Rule
The doctrine of attractive nuisance treats trespassing children as invitees even though the children are trespassers.
The 4 elements for attractive nuisance are
(1) the possessor knew or should have known that the artificial condition possessed unreasonable risk or death or risk of serious harm to trespassing children;
(2) The risk of harm is not likely to be recognized by children. Meaning that the risk taken by the children should be a situation in which a child could appreciate the risk, such as falling off a shed, injured in a swimming pool alone, but if the child is a toddler, who gets in the pool or signs that the child is too young to read, then the child cannot appreciate the risk or understand the risk if they cannot read or swim
(3) the place where the danger exists is one that the possessor knows or has reason to know that the children are likely to trespass
(4) the financial burden of correcting the danger is out weighed by the risk of harm to trespassing children
(5) the possessor breached its duty for failing to use reasonable care to reduce or eliminate the danger to children. The possessor owes a duty to children to lock a gate, know better, and should not fail to utilize reasonable care
What is the NY approach to attractive nuisance
NY does not recognize the “attractive nuisance” doctrine but in “essence” NY applies the attractive nuisance doctrine (and elements) for foreseeability of care and duty to make ones property safe
What is the NY approach for landowner liability
NY requires the landowner (holds the landowner to) a duty of care to act reasonable to everyone, (and does not distinguish between trespasser, licensee, invitee) from foreseeable harm.
All the same standard
Under the modern trend about 1/2 the states adopted what standard of care a landowner owes (including NY)
Under the modern trend about 1/2 the states have adopted that the landowner owes “a reasonable care standard” by which a duty is owed to anyone entering the property regardless of the person’s status. These states have abandoned the inquiry into the plaintiff’s status, and focuses on the conduct of the defendant and whether the defendant maintained the premises in a “reasonable safe condition” under the circumstances
NJ follows what duty of care by a landowner
NJ follows the old common law of distinguishing between a plaintiff’s status in a claim against a landowner for an injury that occurred on the property
What is the default rule on the MBE for a duty of care owed by the landowner
NJ follows the old common law of distinguishing between a plaintiff’s status in a claim against a landowner for an injury that occurred on the property
What is the scope of a landowner’s duty under the modern trend
The scope of the possessor’s duty is defined by the “foreseeable unreasonable risks” to persons entering the property, and the duty is to take reasonable measures to discover and prevent injury for ANY person that would be present on the landowner’s property, which is a person that is reasonably foreseeable to be on the land. In “essence” NY treats everyone as an invitee.
Anyone maintaining a property must reasonably and foreseeably protect against danger or dangerous harms
In “essence” NY treats anyone entering a landowner’s property (possessor) as
an “invitee,” and must maintain the property in a reasonable safe and prevent foreseeable dangerous conditions. Property owners in NY owe a reasonable foreseeable duty to all the parties to keep the premises safe, and safe from foreseeably dangerous conditions
NY adopted the Learned Hand Doctrine, which
Determines the reasonableness of conduct based on (1) the probability of injury, (2) seriousness of the injury, and (3) ease and cost of extinguishing the risk
A landowner is not an absolute insurer of someone’s safety, but ask
“where you reasonable under the circumstances,” so you determine under the Learned Hand doctrine the totality of the circumstances to determine reasonableness and foreseeability of harm
What is the rule for slip and fall
A plaintiff who slips and falls on the defendant’s property must prove that a latent dangerous condition existed, (1) the landowner created the dangerous condition, (2) the landowner had actual notice of the dangerous condition, and/or (3) the land owner had constructive notice because the dangerous condition had existed for a sufficient period of time, such that the defendant should have discovered the dangerous condition and corrected it.
Under the slip and fall rule, what is generally the easiest element to try and prove
(3) The constructive notice element because the dangerous condition had existed for a sufficient period of time, such that the defendant should have discovered the dangerous condition and corrected it. Numbers (1) and (2) are much more difficult unless you have actual proof. So determine what was reasonable under the circumstances.
What are the general questions to determine liability for a slip and fall
How long was the dangerous condition there? It is reasonable of the property owner to have found the object slipped on?
What is the duty of care owed by a supermarket to the its customers
The supermarket is not strictly liable, nor gross negligence, but owes only the negligence standard of duty of care.
Labor Laws 240 and 241
Imposes absolute liability on a landowner and general contractor, so when a plaintiff is injured, they try to bring claims under 240 and 241 to recover (aside from workers compensation)
Rule: New York Labor law imposes what kind of duty on the landowner and general contractor
NY imposes “strict liability and non-delegable” duties upon both the landowner of realty and general contractor of a construction site to provide adequate safety in the method and manner in which the following activity is performed
Construction and Cleaning Renovation Altering Painting Excavation Demolition
These categories are not “simple maintenance.”
Labor Law 241 is NY’s
Labor Law 241 is New York’s Industrial code for safety and protection codes, so a violation is Negligence Per Se
Under NY Labor Law 241 [241(6) to be exact]
A plaintiff must allege that his injury was proximately caused by a violation of a specific SAFETY VIOLATION set forth in NY’s industrial code which sets the State’s minimum safety and protective standards for Construction and Cleaning, Renovation, Altering, Painting, Excavation, Demolition
Labor Law 240 in NY’s
Scaffold Law, which is a non-delegable duty for property owners and general contractors to prevent “gravity” related accidents involving the minimum safety and protective standards for Construction and Cleaning, Renovation, Altering, Painting, Excavation, Demolition on buildings and structures
To recover under Labor Law 240 the injured work must prove that the Owner or General Contractor
Breached its duty to provide adequate safety devices to protect against risks arising from physically significant elevation differential, such as things or people falling from above
What is the basic claim that a plaintiff brings under Labor Law 240
That the property owner or general contractor did NOT provide adequate protection, and no equipment was readily available
Under the Labor Law and statutes a workers comparative negligence may
NOT be asserted, and the liability of the General Contractor and Landowner oner is absolute, however, there is one exception, and the defense of the “recalcitrant worker defense.”
What is the recalcitrant worker defense
The recalcitrant worker defense is where the safety equipment was readily (sometimes it must be ‘super readily’ available) BUT the worker refused to use the safety equipment, and the refusal was the “sole proximate” cause of the injury
Under NY’s labor laws 240 and 241 if a landowner rents / leases out the entire property, which includes renovation and maintenance, is liable for
A landowner is 100% liable, even if, the landowner rented out the entire premises because labor law 240 and 241 is a “strict liability” to provide adequate safety. So if the person in possession of property does any D-DRAPED, and an injury occurs, the landowner is liable even if he was not aware of the D-DRAPED going on
Under the NY labor law 240 and 241 owner/occupants of 1 & 2 family dwellings are
Exempt from strict liability where the owner does not direct or control the work being done by the general contractor
100% liability under Labor Law 240 because
Under the Scaffolding Law [Labor Law 240] there was no safety devices readily available
100% liability under Labor Law 241 because
Under the Industrial Codes, any violation that caused the injury creates 100% liability for the General Contractor and Landowner
