Torts Flashcards
ISSUE: Could a court properly find that the woman was negligent even though she was driving below the speed limit? ANSWER: Yes. Because compliance with a statutory standard does not insulate an actor against liability for negligence, the woman could properly be found liable to the man despite the fact that she was driving below the posted speed limit.
Statutory standards typically establish the level of care necessary to avoid a finding of negligence. Thus, “an actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.” However, an actor is negligent when he or she “does not exercise reasonable care under all the circumstances.” Speed limits are established for normal driving conditions, not hazardous conditions caused by poor weather. Given that the accident in which the man was injured occurred on an icy road during a winter storm, a court could find that the woman was negligent even though she was driving at a speed lower than the posted speed limit. Compliance with a statute does not establish freedom from fault.
ISSUE: Could a court properly find that the woman is liable for the man’s damages resulting from the infection? ANSWER: Yes. Because contracting the serious infection was within the scope of the risk of negligent driving, the court could find that the woman’s negligence was the proximate cause of the man’s injuries sustained as a result of contracting the infection.
An actor is liable for those harms that are a foreseeable consequence of his negligence.
Courts have routinely found that subsequent medical malpractice is within the scope of the risk created by a tort defendant. If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner. Liability typically attaches even when the medical services rendered cause harm which is entirely different from that which the other had previously sustained so long as the mistake or negligence is of the sort which is recognized as one of the risks which is inherent in the human fallibility of those who render such services.
ISSUE: Could a court properly find that the hospital is liable for the man’s damages resulting from the infection? ANSWER: Yes. Although the man cannot directly prove that he contracted the infection in the hospital or from a specific action by the hospital or its employees that was negligent, the hospital could be found liable under the doctrine of res ipsa loquitur because the man can show that (1) contracting the infection does not normally happen without negligence, and (2) other responsible causes are sufficiently eliminated by the evidence.
Typically, the tort plaintiff bears the burden of proof to establish the specific actions of the defendant or its employees (acting within the scope of their employment) that were negligent and caused his harm. Here, the plaintiff has no direct proof of the actions of the hospital or its employees that were negligent and that caused the infection from which he is suffering.
However, the doctrine of res ipsa loquitur permits the trier of fact to infer that the harm suffered by the plaintiff was caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Res ipsa loquitur is commonly used in actions against medical providers when the patient suffers an unexplained injury and the evidence establishes that the risk of such an injury can be largely eliminated when reasonable care is used. If, for example, the evidence shows that a particular adverse result of surgery is totally preventable when surgeons exercise reasonable and customary care, then res ipsa is appropriate in the patient’s suit against the surgeon.
The man should be able to show that contracting the infection is an event that normally does not occur in the absence of negligence. A plaintiff need not show that reasonable care would completely eliminate the risk, only that it ordinarily does not occur in the absence of negligence.
The man should also be able to show that the very likely cause of the infection is one of three possibilities: (1) improperly sterilized instruments, (2) failure of employees to follow proper handwashing techniques, or (3) reuse of medical instruments that cannot be properly sterilized. Any of these possibilities would constitute hospital negligence. Another cause that could suggest either hospital negligence or negligence by a third-party supplier is the use of contaminated blood, but that cause is eliminated by the facts. The possible causes that do not suggest hospital negligence are “rare possibilities” that occur outside the hospital setting. These possible causes are eliminated because the man was hospitalized during the entire period of potential exposure. Thus, even though the specific cause of the infection cannot be proven, it appears that there is a very strong inference that the hospital’s negligence caused the infection.
Lastly, here the hospital clearly had a duty to the man to protect him against contracting infections while hospitalized. Thus, the indicated negligence—failing to protect the man from contracting the infection—was within the scope of the hospital’s duty to the man.
Based on this evidence, the court could use the res ipsa loquitur doctrine to find that the hospital is liable for the man’s infection.
ISSUE: If a court found that both the woman’s negligence and the hospital’s negligence caused the man’s infection, could the woman’s liability be limited to $100,000 for injuries the man suffered in the accident? ANSWER: No. A finding that the woman’s negligence caused the car accident would mean that the woman is solely responsible for the $100,000 damages from the accident and is liable for that amount. She and the hospital together will be jointly and severally liable for the $250,000 in damages from the man’s infection. Thus, the man can collect any portion, or all, of the $250,000 damages from the woman. Therefore, the woman’s liability for both injuries cannot be limited to $100,000.
If the woman negligently caused the auto accident, she would be the sole proximate cause of the accident and would be liable for the $100,000 stipulated damages. She alone bears responsibility for those damages.
If the negligence of the woman and the hospital both caused the man’s infection, the woman and the hospital would be jointly and severally liable for the $250,000 stipulated infection damages. Joint and several liability would be imposed for the infection damages because both the woman and the hospital have caused an indivisible injury, one of the bases of joint and several liability. Each of them is liable for the full amount of the man’s damages from the infection.
Thus, because the woman is solely liable for the $100,000 of damages just from the accident and is jointly and severally liable for the foreseeable infection damages, her liability cannot be limited to $100,000.
[NOTE: The man has no obligation or need to ask the court to apportion the infection damages. He can approach either tortfeasor, or both tortfeasors, and seek total infection damages of $250,000 or a lesser amount. The man has the choice of how to apportion collection efforts between the two. The fourth call asks only whether the woman’s liability could be limited to $100,000. Clearly the answer is “no” because she is liable for $250,000 as a joint tortfeasor in addition to liability for $100,000 damages from the accident. The examinee is not asked to specify how the plaintiff would apportion collection efforts between the two joint tortfeasors.
The MEE Subject Matter Outline notes that all torts questions occur in a jurisdiction that has joint and several liability with pure comparative negligence.]>
%] ISSUE: Is a public fireworks display an abnormally dangerous activity subject to strict liability? ANSWER: The trial court’s finding that a public fireworks display is not an abnormally dangerous activity subject to strict liability may or may not have been correct. A public fireworks display is not a matter of common usage and has substantial risks that cannot be eliminated. But some courts, relying on the Second Restatement of Torts factors, have found that public fireworks are nonetheless not abnormally dangerous because of their value to the community.
The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, in which the defendant’s reservoir flooded mine shafts on the plaintiff’s adjoining land. Rylands has come to stand for the rule that “the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.”
Today, the determination of whether an activity is unduly dangerous, and thus subject to strict liability, is generally governed by factors outlined in the Restatement of Torts. Under the First Restatement, strict liability applied to an “ultra-hazardous” activity. Under the Second and Third Restatements, strict liability applies to an “abnormally dangerous activity.” Section 520 of the Restatement (Second) lists six factors that are to be considered in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f ) extent to which its value to the community is outweighed by its dangerous attributes.
Comments to the Restatement explain that “several factors are ordinarily required for strict liability but it is not necessary that each of them be present. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.” The Second Restatement continued to define “common usage” narrowly. To be a matter of common usage, an activity must be carried on “by the great mass of mankind or by many people in the community.”
As in the First Restatement, under the relatively new Third Restatement, the strict liability determination is based on only two factors. An activity is abnormally dangerous if (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage. However, the Third Restatement employs a much broader definition of “common usage” than that of the First and Second Restatements. Under the Third Restatement, “activities can be in common use even if they are engaged in by only a limited number of actors”. Consider the company that transmits electricity through wires. The activity itself is engaged in by only one party. Even so, electric wires are pervasive within the community. Moreover, most people, though not themselves engaging in the activity, are connected to the activity. The concept of common usage can be extended further to activities that, though not pervasive, are nevertheless common and familiar within the community. If in this sense the activity is normal, it is difficult to regard the activity as exceptional or abnormally dangerous.
On the other hand, the Third Restatement specifies that “the value that the defendant or others derive from the activity is not a direct factor in determining whether the activity is abnormally dangerous.” It is thus unclear whether, under the Third Restatement, more or fewer activities would be classified as abnormally dangerous than under the Second Restatement.
The classic example of an abnormally dangerous activity is blasting. Courts in virtually all jurisdictions have held that this activity is subject to strict liability, citing its potential for extensive harm, the fact that it is not a matter of common usage, and the actors’ inability to eliminate risk.
Courts have divided as to whether legal fireworks displays should be classified as abnormally dangerous and thus subject to strict liability. Courts that have classified fireworks displays as abnormally dangerous have tended to focus on the fact that fireworks are much like blasting in that “anytime a person ignites aerial shells or rockets with the intention of sending them aloft to explode in the presence of large crowds of people, a high risk of serious personal injury or property damage is created. Furthermore, no matter how much care pyro-technicians exercise, they cannot entirely eliminate the high risk inherent in setting off powerful explosives such as fireworks near crowds.” Courts that have declined to classify legal fireworks displays as abnormally dangerous have tended to focus on their value to the community.
Under the limited factors of the First and Third Restatements, the case for holding that public fireworks displays are abnormally dangerous is very strong. This activity is not one carried on by the “mass of men” given that it is legally performed only by trained, licensed personnel. Its risks, given the large number of people who watch such displays, cannot be eliminated.
Using the multiple-factor approach of the Second Restatement, one can justify a finding that fireworks displays are not abnormally dangerous based on their popularity and value to the community and relatively low risk to any particular individual. Under the Third Restatement, the value of fireworks to the community would be irrelevant, but it might be characterized as a matter of common usage given that fireworks, like electrical wires, are pervasive, at least on certain holidays.
Thus, it is unclear whether the trial court erred in finding that public fireworks displays are not an abnormally dangerous activity. However, if the court relied on the Second Restatement, other courts have reached the same conclusion. The court’s conclusion could also be justified under the Third Restatement given its novel definition of common usage.
ISSUE: Based on the evidence submitted by the woman and her husband, could a reasonable jury find that the conduct of the fireworks company was negligent? ANSWER: Yes. The trial judge incorrectly directed a verdict for the fireworks company on the negligence claim. Adherence to a statutory standard does not insulate a defendant from liability for negligence, and the evidence showed a foreseeable risk of harm that precautions would have reduced without undue burden.
Although the unexcused violation of a statutory standard of care is negligence per se, the converse is not true: an actor who has complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances. In judging whether an actor’s conduct is reasonable, the trier of fact will consider the burden of taking precautions as compared to the risks inherent in the actor’s conduct and the probability that those risks will materialize.
Here, all the fireworks company’s employees were state-certified fireworks technicians, and the company followed all governmental fireworks regulations. However, the plaintiffs’ evidence established that there was a foreseeable risk of a misfiring mortar even when the fireworks display was performed with due care; the risk of misfire cannot be eliminated. The evidence also established that a misfiring mortar can cause death or serious injury to a bystander. Nationally, accidents involving fireworks cause about 9,000 injuries and 5 deaths each year. About 15% of fireworks accidents are caused by mortars misfiring in the course of professional fireworks displays, and some of these accidents occur despite compliance with governmental fireworks regulations.
In recognition of the risks associated with the discharge of fireworks, a state statute imposes a 500-foot safety zone for fireworks displays on land. Although the statute does not refer to fireworks displays on water, it arguably provides a reasonable standard for determining a safety zone for a fireworks display on water. The evidence also showed that a 500-foot safety zone would not have hindered spectators at the lake fireworks display to any significant extent, as only four potential viewing spots lie within this area. Because the fireworks company’s employees were all state-certified fireworks technicians, a reasonable jury could have concluded that both the risk of injury and the utility of a 500-foot safety zone were known to the fireworks company. It could also have concluded that the fireworks company or the homeowners association, with very little cost or inconvenience, could have identified the four viewing spots within the 500-foot safety zone and warned potential spectators of the hazard of watching from those locations.
Thus, the court erred in directing a verdict for the fireworks company on the negligence issue: adherence to a statutory standard does not insulate an actor from liability, and there was evidence on which a jury could have based a negligence finding.
%] ISSUE: When is an actor’s creation of a dangerous situation the proximate cause of injuries suffered by a person who was rushing to respond to the danger? ANSWER: The trial court incorrectly found that the misfiring mortar was not the proximate cause of the husband’s injuries because danger invites rescue.
Liability typically extends only to individuals within the zone of risk. If an actor’s conduct “creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.” Liability also typically extends only to foreseeable hazards. The actor whose conduct is responsible for an altogether unexpected type of injury usually escapes liability. Here, because the husband was inside his house, he was probably outside the area in which risks from a fireworks display were to be anticipated. He also suffered a different injury (fracture) from that which one would usually anticipate (burns, impact harm) from fireworks exposure. However, courts have long held that injuries sustained when running from danger are foreseeable. They have also held that “danger invites rescue.” The wrong that imperils life is a wrong to his rescuer. Thus, because the husband was a rescuer and his injuries are typical of those an individual rushing from (or to) a dangerous situation would sustain, the trial court erred in concluding that the acts and omissions of the homeowners association and the fireworks company were not the proximate cause of his injuries.
ISSUE: When is a person liable for the acts or omissions of an independent contractor employed by that person? ANSWER: The trial court incorrectly found that the homeowners association could not be held liable for the fireworks company’s acts or omissions. One who employs an independent contractor is subject to liability for the contractor’s failure to take reasonable precautions as to danger inherent in the work.
An independent contractor is one who, by virtue of his contract, possesses independence in the manner and method of performing the work he has contracted to perform for the other party to the contract. Independent contractors are usually paid by the job instead of receiving ongoing salaries; the individual who hires an independent contractor typically does not supervise the contractor’s activities or retain a right to control his activities. The fireworks company is an independent contractor: it was hired by the homeowners association for a specific job, to plan and manage the fireworks display. The homeowners association did not supervise the fireworks company’s work or have any control over its operations.
Typically, one who employs an independent contractor is not vicariously liable for the contractor’s acts or omissions. But when an actor “employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, he is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”
Here, the homeowners association had reason to know that fireworks are inherently risky; thousands of fireworks injuries occur each year, and the risk cannot be eliminated even when fireworks are used by experts. Thus, the trial court’s conclusion that the association could not be held liable for the fireworks company’s acts was erroneous.
ISSUE: Can the man recover damages under tort law from the physician? ANSWER: No. A doctor is liable to a patient only when the evidence shows that the doctor has failed to comply with the standard of care for the relevant specialty and medical community and the failure caused the patient’s injury. Because the facts here do not establish such a failure, the physician would not be liable for the man’s injury.
A medical doctor is liable to a patient only when the evidence shows that he has failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patient’s injury. In assessing whether a doctor has met this test, most courts compare the doctor’s conduct to national standards rather than those that prevail in his or her locality. Because the standard requires assessment of typical doctor conduct, expert testimony is almost invariably necessary to establish a doctor’s negligence.
Here, there are two possible negligence claims against the physician. The man might argue that the physician was negligent in suggesting that drinking the herbal tea might lower his cholesterol. The man also might argue that, in his follow-up visit, the physician was negligent in failing to determine that his symptoms were due to the herbal tea if the man could establish that the delay in diagnosis worsened his medical condition. To succeed with either argument, the man would have to show that, if the physician had complied with the standard of care for general practitioners, the man would have followed a different course of action. Additionally, the man would have to show that the physician’s failure to comply with the standard of care caused him harm. Based on the available evidence, it appears highly unlikely that expert testimony will be available to make such a showing.
Here, there is no indication that the physician failed to comply with the standard of care by suggesting that this type of herbal tea lowered cholesterol levels. There is no indication that the physician was aware that this type of herbal tea would be contaminated with toxic pesticides. Moreover, there is no indication that complying with the standard of care for general practitioners would have required him to be aware of such contamination. The facts establish that the physician advised the man that a prescription drug was the most reliable method of lowering cholesterol levels and told the man to come back for another test in three months. The physician only mentioned the herbal tea when the man refused a prescription drug in favor of “natural” methods and dietary change and did so because of a recent research report. Indeed, the herbal tea may have played a role in lowering the man’s cholesterol.
With respect to the physician’s failure to correctly diagnose the source of the man’s symptoms, the facts establish that the physician responded to the man’s elevated white blood cell count promptly and ordered additional tests. After these tests revealed a liver inflammation, the physician promptly referred the man to a specialist. More importantly, the facts show that even liver specialists were able to determine the link between the herbal tea and symptoms like the man’s only when they had a cluster of patients with similar symptoms and discovered that all of the patients were drinking the same herbal tea.
Thus, based on the available evidence, the physician may not be found liable to the man.
ISSUE: When may a producer of a defective product be found liable for injuries caused by that product? ANSWER: The producer of goods that cause injury to a person may be liable to the injured person in tort if the seller was negligent, if the goods were defective, or if they did not satisfy the implied warranty of merchantability. Here, the herbal tea that the man purchased was defective because it was contaminated with pesticide.
“One who sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm thereby caused.”
Products that fail to meet the producer’s own specifications are typically described as having a “manufacturing” defect. In the case of food products, the presence of a harmful ingredient is generally considered a manufacturing defect “if a reasonable consumer would not expect the food product to contain that ingredient.” The herbal tea that the man consumed falls into the manufacturing defect category even though it is not a manufactured product in the traditional sense because a reasonable consumer would expect the herbal tea to be free of contamination when processed and packaged. Given the severe harm caused to consumers by the pesticide residue, its presence clearly rendered the product unreasonably dangerous. Thus, the processor selling tea with this defect would be liable in tort for resulting injuries.
In order to recover for injuries sustained because of a manufacturing defect, a plaintiff need not show that the producer was negligent. A producer is strictly liable whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”
The man could also rely on the implied warranty of merchantability to establish the U.S. companies’ liability. Because the sale of the herbal tea by the producers is a sale of goods, it is governed by Article 2 of the Uniform Commercial Code. The producers are “merchants” with respect to those goods, so the contract of sale included an implied warranty of merchantability. There is no evidence that this warranty was excluded or modified in any of the contracts under which those companies sold herbal tea. To be merchantable, goods must, inter alia, be “fit for the ordinary purposes for which such goods are used.” Clearly, the contaminated herbal tea was not fit for the ordinary purpose for which the herbal tea is used. Thus, the producers breached the implied warranty of merchantability and are liable for that breach.
Under both warranty theory and strict products liability, the producers may not rely on the fact that the contamination took place before the herbal tea came into their hands to evade liability. In a warranty action, the only issue is whether the herbal tea was merchantable. How it came to be unmerchantable is irrelevant. In a strict products liability action, the issue is whether the product was defective. Thus, the man could recover against a producer of the herbal tea without proof of negligence if he could show that any given producer sold the product that caused his injury.
[NOTE #1: In some states, privity requirements may be applied to prevent the man from recovering from a seller with whom he is not in privity. However, in many states, privity rules have been relaxed or modified sufficiently to permit a remote purchaser like the man to assert an implied warranty claim against the seller of a food product.]
[NOTE #2: Some examinees might note that complete analysis of the warranty claim requires knowledge of whether the relevant contract effectively disclaimed the warranty of merchantability. However, this would not affect the tort liability claim.]
ISSUE: Can the man recover damages from the health-food store? ANSWER: Yes. The health-food store from which the man bought the contaminated herbal tea may be found strictly liable in tort even though the store did not produce the tea.
Strict products liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product. Because the health-food store is a commercial seller, it may be found liable to the man for the defective herbal tea that the man purchased there.
The man could also recover on an implied warranty theory against the health-food store in all jurisdictions because he was in privity with the store.
Just as with the herbal tea producers, the man has the burden of showing causation. But the facts specify that the man purchased all the herbal tea he consumed from the same health-food store. The identification problem that makes causation impossible to establish with respect to the producers thus does not arise with respect to the health-food store.
Thus the health-food store may be found liable for the man’s injury based on the fact that it sold a defective product that caused the man’s injury. Some states have statutes that exclude strict liability in tort for retailers who sell products in closed packages.
ISSUE: Could a jury properly find that the friend, a 10-year-old child with no snowmobiling experience, was negligent? ANSWER: Yes. A jury could properly find that the friend is liable to the boy based on a finding that the friend was engaged in an adult activity and that he was negligent in turning off a designated snowmobile trail onto an unmarked logging trail.
Unless a child is engaged in an adult activity, his conduct is to be measured against that of a child of similar age, intelligence, and experience. Under this standard, it is doubtful that a jury could find the friend negligent: he was only 10 years old, and he had not previously engaged in snowmobiling.
However, when a minor engages in a hazardous activity which is “normally undertaken only by adults, and for which adult qualifications are required , he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity.” Driving a motorized vehicle like a snowmobile is a classic example of an adult activity. Indeed, the Third Restatement of Torts provides as examples of dangerous adult activities, “driving a car, a tractor, and a motorcycle, and operating other motorized vehicles such as minibikes, motorscooters, dirt bikes, and snowmobiles.”
A reasonably prudent adult snowmobiler operating a snowmobile in a rocky, forested area would perceive that turning off a marked and designated snowmobiling trail onto a trail not designated for snowmobiling presents a foreseeable risk of injury. An unmarked trail is unlikely to have been prepared for snowmobiling. As the facts make clear, trails in this area often contain hidden hazards – for example, rocks, fallen tree limbs, and stumps – that pose the risk of a collision and that may not be readily visible under the snow on which a snowmobile travels. Thus, a jury could find that the friend was negligent in turning off a marked and designated snowmobile trail onto a logging trail unmarked for snowmobiling.
[NOTE: An examinee may appropriately note that, if the jury finds that the friend was negligent, it should also find that his negligence was the cause-in-fact and proximate cause of the boy’s injuries; the accident would not have happened but for the friend’s action in turning onto the unmarked trail, and hitting a hidden object is an immediate, foreseeable risk of such an action. These conclusions as to cause-in-fact and proximate cause are so obvious that an examinee should not be penalized for failing to note them.]
ISSUE: Did the landowner have a duty to reveal hidden dangers and, if yes, could a jury properly find that there was a breach of that duty? ANSWER: A jury could find the landowner liable to the boy if he is classified as a licensee to whom a limited duty of care is owed. If the boy is found to be a trespasser rather than a licensee, the jury could find that the landowner is liable only if the attractive-nuisance doctrine applies.
In most states, the landowner’s duty to the boy depends on whether the boy is classified as a trespasser or a licensee. A trespasser is one who enters or remains upon land owned or possessed by another without a privilege to do so. Because the boy and his friend had no privilege to enter the landowner’s property, they may be classified as trespassers.
However, if “in light of all the surrounding circumstances, a reasonable person would interpret the possessor’s words or conduct as manifesting that he is in fact willing for another to enter upon his land,” then the entrant is a licensee, not a trespasser. The presence of a path may manifest consent.
Although posting a “no trespassing” sign would normally negate an implication of consent, the landowner’s “no trespassing” sign was not visible, and thus the boy could be classified as a licensee if the trier of fact concludes that it was reasonably foreseeable to the landowner that snow would obscure the sign and chain during the winter.
If the boy is classified as a licensee, in most jurisdictions the landowner would owe him a duty to reveal hidden dangers of which the landowner “knows or has reason to know” and which the boy was not likely to discover. Here, because the landowner’s property is typically covered with three to four feet of snow during the snowmobiling season, a jury could properly conclude that the landowner knew or had reason to know of the hazard posed by a chain and a “no trespassing” sign only 30 inches above the ground and that he should have posted a higher and more visible warning.
If, however, the boy is classified as a trespasser, in most jurisdictions the landowner would owe him no duty of care to make the premises reasonably safe or to warn of hidden dangers unless the court finds that the landowner has created an “attractive nuisance.” Under the attractive-nuisance doctrine, a possessor of land is subject to liability for physical harm to a trespassing child when that harm is caused by an artificial condition on the land and
(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, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Here, the landowner likely had reason to know that a logging trail intersecting a snowmobile trail would offer a tempting detour to young snowmobilers and that the landowner should have foreseen that a chain and sign only 30 inches above the ground could easily become obscured by snow, posing a serious risk of accident and injury to a snowmobiler who deviated onto the logging trail. There is no question that the boy and his friend did not discover the dangerous condition (i.e., a hidden chain); the friend, the driver, clearly did not appreciate the risk and the boy, his passenger, had no opportunity to avoid it. The burden of eliminating the risk is small; all that would be necessary is posting a sign warning of the hazard at a sufficient height to ensure that it remains snow-free. Thus, had the boy and his friend not been engaged in an adult activity, the boy’s claim against the landowner would be strong.
However, the attractive-nuisance doctrine is almost invariably applied when the trespassing child is engaged in an activity appropriate for children; indeed, most of the cases involve “rather young children, usually under 12.” The landowner’s duty “is only to exercise reasonable care to keep the part of the land upon which he should recognize the likelihood of children’s trespassing free from those conditions which are likely not to be observed by children, or which are beyond the imperfect realization of children.” Here, the risk inherent in the hidden chain was a risk only to snowmobilers. The landowner could argue that, because snowmobiling is an adult activity, the attractive-nuisance doctrine would not apply. Under current case law, courts have refused to apply the attractive-nuisance doctrine to minors engaged in unforeseeable adult criminal activity.
Because of the difficulties inherent in classifying entrants onto real property, about half of the states have modified the classifications so as to establish a general duty of reasonable care under the circumstances. But only a handful of states have fully abolished the categories; most have retained the trespasser status and the rules that go with it.
Thus, if the boy is classified as a licensee, a jury may find that the landowner violated his duty of care. If the boy is classified as a trespasser, a jury may find that the landowner violated his duty of care only if it applies the attractive-nuisance doctrine, and a fact-finder may choose not to apply that doctrine given that the boy and his friend were engaged in an adult activity. In a state that has abolished these classifications, the boy may recover if the fact-finder finds that the chain posed a foreseeable risk to foreseeable entrants.
[NOTE: An examinee’s conclusions on trespasser/licensee categorization and whether the attractive-nuisance doctrine is available are less important than a demonstrated understanding of the relevant legal categories. As in Point One, an examinee who concludes that the boy can recover might also appropriately note that the fact-finder should also find that the landowner’s actions were the cause-in-fact and proximate cause of the boy’s injuries. Again, however, these conclusions are so obvious that an examinee should not be penalized for failing to discuss them.]
ISSUE: Did the woman owe the boy a duty of care? ANSWER: No. A jury could not properly find that the woman had a duty to the boy because she did not increase the risk of harm to him beyond that which existed before she called 911, and the boy did not rely on the woman’s exercise of reasonable care to his detriment.
A jury could not properly find that the woman had a duty to the boy because she did not increase the risk of harm to him beyond that which existed before she called 911, and the boy did not rely on the woman’s exercise of reasonable care to his detriment.
Generally, there is no duty to come to the aid of another. An actor who undertakes to render services designed to reduce the risk of harm to another does acquire a duty of reasonable care toward the other if
a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
b) the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking.
Here, the woman did not increase the risk of harm beyond that which existed without the undertaking to call for help. Although the time that elapsed between the accident and the boy’s rescue caused frostbite injuries, the woman caused no delay; indeed, if she had not called 911, aid would likely have arrived even later than it did. Nor did any individual rely on the woman. She told the 911 dispatcher that she was leaving the scene, and her call did not prevent the boy or anyone else from reporting the accident or taking steps to avoid the harm. Under the Second Restatement of Torts, one who takes charge of another who is helpless is subject to liability to the other for any bodily harm caused to him by the actor’s discontinuing his aid, if by so doing he leaves the other in a worse position than when the actor took charge of him.
ISSUE: Could a jury properly find that the boy was negligent and, if yes, what impact will his negligence have on his claim? ANSWER: A jury could properly find that the boy was negligent in entrusting a snowmobile to an inexperienced 10-year-old. A finding of negligence would reduce the boy’s damages award but, in almost all jurisdictions, would not deprive him of his claim.
Because the boy was an experienced snowmobiler who should have been aware of the risks of driving a snowmobile without any training or experience, a jury could find that the boy was negligent in allowing his friend to drive the snowmobile even if it applied the standard of care applicable to children.
At common law, if the jury found that the plaintiff’s negligence was a cause in fact and proximate cause of his injuries, the plaintiff was precluded from recovering damages from the defendant. In other words, if the plaintiff’s negligence contributed to the plaintiff’s injuries, the plaintiff could not recover from the defendant even though the defendant was also negligent. This contributory-negligence doctrine applies only in a minority of states. All other states, however, have abandoned the contributory negligence doctrine in favor of a comparative-negligence doctrine.
Under the modern “comparative negligence” approach, if the jury finds that two or more parties are negligent, it may apportion fault among them. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury. Thus, a finding that the boy was negligent should not deprive him of his cause of action. There are some comparative-negligence jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50 percent at fault; in those jurisdictions, if the jury concludes that the boy was 50 percent or more at fault, he cannot recover.
