Torts II Outline

PROXIMATE CAUSE
 3 bogus rules of foreseeability
 Rescue doctrine
 Second Injury
 Eggshell skull rule
 1 & 2 are intervening cause rules

 (1) Rescue Doctrine

 Allows an injured rescuer to sue the party which caused the danger requiring the rescue in
the 1st place
 Four elements:
 (1) the defendant was negligent to the person rescued and such negligence caused the peril or
appearance of peril;
 (2) the peril or appearance of peril was imminent;
 (3) a reasonably prudent person would have concluded such peril or appearance of peril; and
 (4) the rescuer acted with reasonable care in effectuating the rescue
 Broad doctrine, applies to rescuers and third parties…
 Accepted in all jurisdictions
 Rescuer must still show the D proximately caused his injuries. Neg acts of rescuer could relieve
ONA, if it supersedes ONA. But courts hardly ever find that neg acts of rescuer superseded ONA.
Policy: want to encourage people to help so give them a break. Legal explanation: emergency doctrine
so the rescuer isn’t held to as high an amount of care.
 Rescue doctrine does apply to products liability cases
 McCoy v. American Suzuki Motor Corp: Interstate, car in front of McCoy wrecks, McCoy helps cop,
accident cleared & McCoy hit after cop leaves. ONA = Suzuki’s defective vehicle. IC = driver’s neg,
passenger’s neg, P’s rescue, officer, hit & run driver. Ct held ONA not too removed of a cause.

 (2) Second Injury Rule

 The ONA will be liable for subsequent or second injuries to the P where the ONA’s conduct
created the opportunity for those injuries to occur
 3 situations:
 (1) Attempt to escape from danger created by D/ONA’s negligence leaves the P in a position
vulnerable to a second accident
o Hypo: D runs into McClurg who breaks leg and before he has chance to get out of the
road a 2nd driver hits him. 1st driver is liable for both injuries. 2nd neg actor isn’t let off the
hook – they would just be jointly and severally liable for the 2nd leg.
 (2) Attempt to alleviate harm caused by D/ONA’s negligence inflicts an injury that exposes the P
to medical malpractice & when that happens ONA will be held liable for initial injuries & medical
malpractice injuries. Doctor would be J&S liable w/ ONA for medical malpractice injuries.
o Hypo: P gets hepatitis from blood transfusion required after car accident, allowed to sue
driver (note 10, p. 343)
  (3) Second injury caused by weakened condition resulting from first injury/ONA exposes P to
further injury as result of weakening condition
o Hypo: D causes McClurg to break leg, recovering on crutches, slips on crutches & breaks
it again. ONA liable for both breaks if injury is deemed a result of weakened condition

 (3) Eggshell Skull Rule

 A D who negligently inflicts any physical harm on a person is liable for all physical
consequences that result, however bizarre or unexpected.
 Doesn’t have to involve a skull, could be any sort of injury/damage
 If you do something that wouldn’t have caused serious injury to someone else but does to the person
b/c of defect, you are liable
 Hypo: student turns in bluebooks after exam to professor, fly has been bugging professor, rolls up
book & swats at fly and negligently hits student on the forehead, dies immediately b/c of congenital
defect. Rule would hold professor liable.

 Public Policy
 Kelly v. Gwinnell: Zak served Gwinnell alcohol, let Gwinnell drive, car accident injured Kelly. Kelly sued
Gwinnell & Zak (respondeat superior). IC of D’s neg driving & the resulting injury were foreseeable,
Kelly was in zone of foreseeable risk from Palsgraf duty analysis.
 Vast majority of courts have rejected social host liability for serving of alcohol. Kelly case was
effectively overruled by NJ legislature, imposed restrictions on social host liability. Except for serving
minors alcohol, there is liability in that situation.
 And most courts do recognize liability for commercial vendors serving alcohol – Dram Shop Act
creates cause of action of liability for commercial vendors who sell alcohol to a certain point.
Enterprise theory of liability - social host has inability to spread the cost of liability, commercial
vendor can spread among customers, they can assume that as a cost of doing business.
 Doctrine of Negligent Entrustment: if you provide a dangerous chattel (gun, car, etc) to a person
who you know or should know would be unlikely to use it safely, you would be liable
 TN law – pg 1 of SM
 Old common law rule – 57-10-101: consumption of any alcoholic beverage rather than the
furnishing of any alcoholic beverage is the proximate cause of injuries inflicted upon another by
an intoxicated person. Most states now have Dram Shop Acts.
 57-10-102: jury must determine “beyond a reasonable doubt” (criminal std for burden of proof
& not used in any other civil context) that vendor’s sale was proximate cause of injury/death &
that vendor either (1) sold to person known to be under 21 who caused the injury/death as
direct result of consumption, or (2) sold to obviously intoxicated person who caused the
injury/death as direct result of consumption.
 DUTY OF CARE

 When does one person owe a duty of reasonable care to another?

 Cardozo – owe duty to prevent foreseeable risk to foreseeable plaintiffs
 Heaven v. Pender quote pg 403 says basically the same thing
 In some situations even where harm is completely foreseeable, courts have wanted to limit
liability/duty based on policy consideration so they’ve imposed either no duty or limited duties. But
Cardozo’s is general principle for most situations.

 Three areas (pg 404) [only covering first 2 in class]

 Failure to Act – the act of a 3rd party or a natural event has caused physical harm to P that D has
failed to take affirmative steps to prevent/ameliorate
 Negligent Infliction of Emotional Distress – neg act causes non-physical harm (emotional distress
or pure economic loss)
 Wrongful Life/Wrongful Birth Cases – neg act causes losses in birth or conception where the
traditional categorizations of personhood are incapable of bestowing a cause of action

 (1) Failure to Act

 Nonfeasance = doing nothing. Hypo: McClurg standing on Front St & sees an elderly guy about to
step out into the street carrying a big box blocking his view, truck was barreling toward him, McClurg
didn’t yell out & guy stepped out & was hit. Liable? No.
 Misfeasance = affirmative wrongful conduct. If in the above hypo McClurg yelled “all clear!” he
would be liable b/c he acted wrongly.
 Early common law drew a distinction b/t nonfeasance & misfeasance, no liability for nonfeasance b/c
there’s no duty.
 Rstmnt §314 [SM p. 2]: [no] duty to act for protection of others - the fact that actor realizes or
should realize that action on his part is necessary for another’s aid or protection does not of itself
impose upon him a duty to take such action
 Motive doesn’t matter. Hypo: Good swimmer about to save drowning person, realizes it’s law
professor that gave her bad grade & changes her mind. Not liable.
 No duty to report to authorities. Hypo: Greer gets mistakenly sent email from two classmates
plotting to kill another, duty for him to report to authorities since there’s not risk to him? No.
 Federal Patient Act that prevents hospitals from treating people who are brought there/show up there
now exists
 Hegel v. Langsam [p. 417]: University didn’t protect girl who was raped. Court rules no duty b/c
university’s purpose is learning, they have no duty to regulate private lives.
 Hypo (note 1a, p. 418): Bigan enticed friend Yania to jump into trench w/ 8-10 ft of water & Yania
drowned. Bigan made no rescue effort. No duty for Bigan to help Yania, even if life preserver was right
there & all he had to do was kick it in. Court ruled enticement to jump in trench wasn’t misfeasance
b/c Yania was a competent adult.
 L.S. Ayres & Co. v. Hicks [p. 420]: 6 yr old boy got fingers caught in escalator & D unreasonably
delayed stopping the escalator. No evidence of misfeasance on part of the D/that he negligently
created the risk. D owed P a duty b/c P was an invitee [people who go to businesses to be customers
or with potential to be customers].
 Four Exceptions to No Duty to Act
 (1) Special Relations that Create Duty:
 2nd Rstmnt 314A [SM p 2]:
o Common carriers (buses, airlines, etc) owe duty to aid and protect passengers
o Innkeeper/guest
o Business invitor/invitee
o Custodian/custodial charge (jailor/prisoner, school/student) – takes custody of person
that deprives them of normal opportunities for protection
 p. 421 notes:
o employer/employee (limited to course of employment & only applies when employee is
evidently unable to look after himself)
o parent/child
o husband/wife
 (2) If D or Instrumentality Under Control of D Causes Harm to a P (whether tortuously or
innocently), usually leaves them helpless etc, then the D has a duty to protect from further harm.
Even w/o special relationship between boy/store, the D still would have a duty because their
instrumentality was the cause of the harm.
 (3) Duty to Eliminate Unreasonable Risk D Has Created (even if innocently)
 Neg Injury By D: when the D by his own neg injures another, there is general agreement that
he is then under a duty to take reasonable affirmative action to aid him.
o Hypo: No duty to trespassers, but suppose D’s train runs over trespasser on tracks? Not
liable for original harm, but if trespasser is bleeding on tracks, D must come to his aid or
he is liable for the aggravated harm.
o Rstmnt §322 [SM p. 2]: if D knows that by his conduct, whether tortuous or innocent, D
has caused injury to make P helpless & in danger of further harm, the D is under duty to
prevent further harm]
 Innocent Injury by D: if you create an unreasonable risk of harm, even if it’s done non-
negligently, you have a duty to act reasonably to eliminate or minimize the risk
o Dead cow/dead deer case & Rstmnt §321 [SM p. 2]
o p. 422 note 8: driving down road at night & hit a deer, so deer carcass is now in the
middle of road, innocent on part of driver, but driver has duty to minimize the risk by
either getting the carcass out of the road or warning drivers .
o Hypo: if at gala, someone jostled person who spilled their drink on stairs, they weren’t
negligent, but they have created a risk so they have a duty to clean it up or notify
someone to clean it up.
 At common law govt has immunity, unless they waive it. Federal tort claims act & many states
have waived tort immunity. so it depends on the extent of the immunity being waived. under
common law, no immunity. today, some rules waived including for dangerous conditions on the
premises.
 (4) Undertaking exception – a duty to act may be imposed whenever the D assumes a
responsibility to act and such undertaking increases the risk of such harm or is relied upon by the P to
her detriment.
 Rstmnt §323 [SM p. 3] – elements to be shown before exception applies:
 o (1) person undertakes to render services to another, either gratuitously or for
consideration, services which he should recognize are necessary for the protection of the
other’s person or things
o (2) fails to exercise reasonable care
o (3) person must suffer physical harm
o (4) the D is liable only if: (a) failure to exercise care increased risk of the harm, or (b)
harm is suffered b/c of the other’s reliance upon the undertaking
 p. 424 hypos:
o A. Crowley v. Spivey: D grandparents of decedent children undertook to supervise
mother’s visitation & mother killed them when left alone. Ds held liable.
o B. Morgan v. Yuba County: sherriff’s dept failed to warn as promised of release of
dangerous prisoner & he killed Morgan.
 Good Samaritan statutes designed to protect good Samaritans from some liability when
trying to help.
o TN [SM p. 4]: any person including doctors etc who in good faith with no charge assists
in emergency care shall not be liable to such victims or persons receiving emergency
care for any civil damages…except such damages as may result from the gross
negligence of the rescuer

 Duties to protect against intentional harm by 3rd persons

 Duties to prevent intentional or criminal attack by 3 rd persons almost always arise from special
relationships, can also arise from an undertaking though
 2 different kinds of special relationships have been held to give rise to this duty to prevent harm:
 SR between the D & the victim then duty arises to exercise reasonable care to protect the
victim (§314A)
o any business invitor owes duty to business invitee to protect them from criminal attack
 SR between the D & the source of harm/criminal, traditionally a duty to control the
source of harm.
o parents have duty to try to act reasonably to control children of theirs they know have
dangerous propensities.
o mental hospital have duty to act reasonably to control dangerous mental patients
 Tarasoff v. Regents of University of California: Dr. Moore had SR with Poddar but no relationship with
victim Tarasoff, so based on principles above/laws that existed til this time he should have duty to
control Poddar, maybe attempt to have him involuntarily committed to mental hospital.
 CA had passed statute that cloaked psychiatrists with tort immunity regarding deciding whether
to commit someone or not. puts burden on psychiatrist to predict who will become violent &
you don’t really know so they’d need to commit everyone. so control avenue was closed for Ps.
 Court found duty to protect the victim, dramatic extension of the law b/c they didn’t
know her & had no relationship with her & didn’t create the risk to her. Court said the
duty would be satisfied by a warning telling Tarasoff that Poddar threatened to kill her
 Most states have accepted Tarasoff but some such as FL have rejected it. In TN principle has
been recognized – Turner v. Jordan (‘97) – psychiatrist knows or reasonably should know
patient is at risk of causing harm to 3rd party he has duty to warn
 Riss v. New York: Riss received threats for 6 months from Pugach, called police for help & was
received w/ indifference. Then he called saying last chance & police still didn’t listen. He hired someone
 who threw lye in her face & partially blinded/disfigured her. Then police listened & gave her protection
24/7 for 3.5 yrs.
 General rule is that police do not have a tort duty to protect the public unless an
exception comes into play, even in cases where there’s a specific identifiable threat
against a person
 Basis for the decision is separation of powers doctrine. Court was saying it’s not the judiciary’s
role to get involved in telling legislative branch how they should divide up their scarce resources
 DeLong v. Erie County: DeLong calls 911 about a burglar, dispatcher writes down incorrect address so
police didn’t get to her & she was murdered
 Court ruled there was a duty – because there was an undertaking of duty, exception
to no duty rule.
 Not just by establishing the call system but also by holding out the 911 service to be called by
someone in need, & by taking her call, she relied on their response & was killed as a result –
she could have called others for help if she knew they wouldn’t come, her neighbor was cop
etc, she didn’t leave the house
 p. 436 note 3 – should Tarasoff be extended to other contexts outside of physical harm – such as a
doctor who discovers a patient has HIV, should he contact people he thinks could be exposed to
protect them? Dr should explain to patient that patient has a duty to tell.

 (2) Negligent Infliction of Emotional Distress

 Courts are very reluctant to go here… Policy reasons: don’t wont everyone who gets upset to file a
lawsuit
 If there was negligently inflicted physical harm the P could get parasitic damages (emotional harm
as parasitic damage of physical harm). The requirement of physical harm was watered down to the
requirement of physical impact (touching) upon the person of the plaintiff.
 Two exceptions to physical impact rule:
 (1) Negligent mishandling of corpses
 (2) Mistaken death telegrams
 Daley v. LaCroix [Direct victim NIED case]: D had car crash that caused electric pole to fall and cause
explosion outside P’s window causing property damage. Two P children claim emotional distress.
 Court abandoned impact rule & submitted to jury.
 This court allows recovery for NIED when there is a definite & objective physical injury
produced as a result of emotional distress proximately caused by the D’s neg conduct.
 Most states including TN have abolished the impact rule.
 So then what is a “physical consequence”?
 We just don’t have an answer to this question. There is no specific test but the modern trend is
that the condition or illness for which recovery is sought must be one susceptible of objective
determination, only reactions of reasonable persons absent specific knowledge of P’s sensitivities
are covered, standard of conduct is the objective standard

 Fear of Future Harm Cases

 D negligently exposed P to something toxic that is known to cause disease. P claims to be living in fear
of contracting the disease. Should this be a cause of action under NIED?
 What if you recovered for NIED and then later developed the cancer, could you sue again for the
cancer? Yes, probably.
 Courts have been reluctant to award damages purely for future harm, but some courts have.
 P could only recover if they showed it was more likely than not (with expert testimony) that they
would actually get cancer – 40% not enough for recovery
 Some courts won’t award damages for the fear but will allow expenses for going to the doctor every
year to get tested – medical monitoring expenses
 People who were negligently or potentially exposed to HIV courts generally let recover for fear
 maybe social stigma plays a part
 HIV is the only thing that causes AIDS, but many things can cause cancer
 HIV affects lifestyle
 Negligent exposure to HIV often occurs in a medical environment and only person would be
affected versus the entire community in carcinogenic cases
 Williamson v. Walden: woman cleaning Dr office, emptying trash & gets stuck with lancet that wasn’t
disposed in biohazard container like it should’ve been. she sues with fear that she could contract HIV.
would want to know if she was actually exposed – had lancet been used on someone with HIV. here
there was no proof of actual exposure b/c the lancet had been disposed of. even with the small chance
she said she was worried, but most courts would reject that and would require actual exposure, but NJ
court here said she could recover anyway. but could only recover for fear in a limited window of
anxiety period – couple of years probably.
 Thing v. La Chusa (p 456) [Bystander NIED case]:
 Once courts abolished impact rule they were faced with problem of what to do with bystanders
 Hypos (what should the law be):
o Mother & daughter crossing the street, drunk driver comes around corner negligently speeding,
mother tries to pull daughter to safety but is unsuccessful in doing so. should mother be able
to sue for emotional distress? [wrongful death does not include emotional distress but is
another claim that’s out there]. most people think so
o Mother sitting on porch, little girl playing in front yard of quiet residential area, little girl’s ball
rolls into street & mother tells her to stop & look both ways, she looks both ways, drunk
driveway comes flying around corner & hits daughter, mother sees it from the front porch.
should she be able to cover? most think so
o Same facts but mother goes inside to get a sweater & hears loud noise & goes outside & sees
daughter in a pool of blood unconscious under the car. recover?
o Mother at work when it happens & gets a phone call, she rushes to hospital & there’s her
daughter in bandages, unconscious, on IV, etc.
 Pure foreseeability analysis doesn’t work, b/c it’s foreseeable that if you kill someone then someone
else will suffer.
 Line to draw for whether they saw it or weren’t present
 Line to draw for relationships
 Thing (minor) was injured when hit by car operated by D. Mother was nearby but didn’t see or hear,
daughter told her about it & she rushed to scene where she saw child.
 Court held mother could not recover here
 Court admits that line drawing is arbitrary, court says they have to be drawn in order to impose
acceptable liability without being disproportionate to D’s actions.
 Court said only those who contemporaneously experience could recover in bystander cases,
 not enough to just witness the event, there is also the relationship requirement – someone closely
related to the victim by blood or marriage
 Options
o Draw arbitrary lines
o No liability at all, bar the claims
o Draw no lines, apply general negligence standard
 CA originally adopted “zone of danger” test – would have had to personally be within the physical
zone of danger created by D’s negligent conduct.
 Dillon v. Legg [know by name!] – created idea of limited foreseeability approach, imposed three
guidelines for court to look at:
o whether P was located near the scene of the accident
 o whether the shock resulted from a direct emotional impact upon P from the sensory &
contemporaneous observance of the accident
o whether P & the victim were closely related
 Dillon v. Legg gave 3 part test, guidelines were arbitrary so cases always expanded them. Thing came
along to make those rules in Dillon fixed.
 **If this issue came up on exam, discuss both Dillon & Thing, but basic test is on pg 461: a P may
recover damagers for emotional distress cause by observing the negligently inflicted injury
a third person if, but only if, said P: (1) is closely related to the injury victim, (2) is present
at the scene of the injury-producing event at the time it occurs and is then aware that it is
causing injury to the victim, and (3) as a result suffers serious emotional distress – a
reaction beyond that which would be anticipated in a disinterested witness and which is
not an abnormal response to the circumstances
 Options/Tests
o Impact Rule
o Zone of Danger
o Dillon/Thing
o Ban all claims
o Allow all claims
 Regardless of NIED, there are other options such as wrongful death action & survival action
 TN – abolished the impact rule, abolished the requirement of showing physical consequences flowing
from the emotional distress, adopted general negligence approach to these cases, but did say you have
to have close relation (Esten)
o Camper v. Minor: P driving cement truck, 16 yo girl negligently ran stop sign & he hit & killed
her. He filed NIED case against her estate. TN supreme court allowed the claim even though P
alleged no physical consequences. This was direct victim case.
o Esten case (2008) – mother received call that child was injured in car accident & was at the
school, so she took other 2 kids & rushed to school & child was still lying on ground, she alleged
her & 2 children suffered distress. TN supreme court said they had a claim even though they
weren’t at the scene.

DUTY OF OWNERS/OCCUPIERS OF LAND

Injury Off the Premises
 What duties are owed by owners/occupiers of land to those that are injured outside the land?
 Common law: no duty to protect against harm outside the land caused by natural conditions on the
land
 Modern trend is to impose general duty of reasonable care under the circumstances for conditions on
land that cause harm to persons off the land (blur the line between artificial & natural conditions)

Injury On the Premises

 Distinction based on whether entrant was trespasser, licensee, or Invitee
 Sheehan v. St. Paul & Duluth Ry. Co.
o Generally there is no duty to trespasser, but there’s an exception that a duty is owed once
the trespasser is discovered. Duty arises at the moment of discovery
o P was walking on tracks & got foot caught & train ran over it
o Hypo: what if train operators were playing poker instead of operating train? it would be
negligent, but they would not be liable because there was no duty – they only owe a duty once
 they actually discover trespasser, they have no duty to try to discover him, it doesn’t matter
why they didn’t discover him
o Once Ds discovered P they owed a duty of reasonable care to prevent the harm
o Many of these rules come from Judge Hand analysis, trying to keep landowner from high
burden
o Generally when a duty is owed to a discovered trespasser, it’s two part:
 Reasonable care to avert harm from dangerous activities [activity = ongoing operation
like a train]
 Duty to warn only dangerous known non-obvious conditions [condition = lying in wait]
 This is true for both trespassers and licensees, for invitees there may be the duty
to fix the dangerous conditions
o 2 exception - frequent trespasser exception (footpath) – if you know trespassers
nd

frequent a certain portion of your land then a duty may arise, if so it will be the same as duties
owed to discovered trespassers.
o 3rd exception – tolerated intruder exception – if you know trespassers are coming onto
your land and you don’t do anything to keep them off then you may be deemed to have
tolerated them and the same duties will arise
o Generally for trespassers the condition would have to be actually known, but for licensees it
would be “known or should have known”.
 Barmore v. Elmore [p 489]
o Trespasser – someone who’s on the land w/o permission
o Licensee – enters land with owner’s permission for own purposes, traditionally higher
duty to licensee than trespassers. Example is social guest, even if they are expressly invited.
o Invitee – enters land in furtherance of owner’s business
o Generally owe a duty only to trespassers that are known, but you owe duty to licensee that is
either known or you should reasonably expect to be there. Duties owed to both are
essentially the same (as listed above).
o Barmore went to Elmore’s house to discuss lodge business, Elmore’s son came in with steak
knife & chased Barmore, Elmore tried to hold back son but son got loose & stabbed Barmore.
o Court decided that Barmore was a licensee.
o Social guests are considered licensees b/c they are there for their own purposes &
companionship (even tho land owner also gets that benefit).
o Old common law rule.
o There is a duty to licensees, but there was no breach of duty here b/c the son wasn’t a known
dangerous condition, he hadn’t harmed anyone in a long time & they had no reason to know he
would go crazy on that night.
 Campbell v. Weathers [p. 492]
o Invitees are the most important category, owed the highest duty.
o For invitees there is the duty to exercise reasonable care to make the premises safe,
often includes actually fixing the dangerous conditions through affirmative steps, may include
duty to inspect the premises, to foresee how the property may be used by invitees to anticipate
dangers & eliminate them, to protect from harm from third persons.
o Limited duties to trespassers & licensees, but to invitees is general duty of reasonable care
under the circumstances.
 o Weathers owns store, Campbell was frequent visitor, came in on one day & didn’t buy anything,
went to use bathroom & stepped on open trap door.
o Court held he was invitee, just b/c he didn’t buy anything at that time doesn’t mean
he’s not invitee, he’s purchased in the past & may in the future. person may go in w/ no
intention to buy & see something they like & buy it.
o Anyone who is on the premises to confer an economic benefit upon the owner [p.
493]. either express or impliedly invited onto the premises in connection with the
business carried on by that person
o Child could be considered invitee, parent could buy something for the child, child could buy for
self or in the future, maybe parent can’t come to store w/o child
o store advertises first 100 get free visor, person goes in just for visor w/ no intention to
purchase, they are invitees b/c they could decide they like something & buy it
o person goes into store to get change for $1, still invitee
o if you already have to make premises safe for person who comes in to buy things then there’s
no higher burden to make it safe for anyone who comes in for bathroom etc.
o generally anyone who comes onto business premises when they are open to the
public would be considered an invitee. even though p 493 says if he had no intention to
presently or in the future be a customer, that would be hard to prove that he’d never buy
anything or change his mind about buying anything.
 Whelan v. Van Natta [p. 495]
o P bought cigs and asked for box, D told him to go to backroom and get it, light is off & he falls
down stairs.
o D didn’t warn of the danger, he said light was on earlier
o TC said P was a licensee so no duty to provide a safe place
o Issue is under what circumstances can individual’s status change?
o P was invitee when he bought cigarettes, if he went into back w/o permission he’d become a
trespasser. He went back there looking for box he became licensee. For more merchandise,
he’d still be invitee.
o Status can change if they go outside the scope of their original status.
o For licensees there is duty to warn of known, non-obvious dangerous conditions.
o At restaurant, go into restroom & injure on broken faucet – still invitee
o Look at business purpose of premises
o Go to drug store & ask to use restroom, they say it’s employees only, but P talks them into
letting him use it & he gets injured. – licensee, employees only restroom is not considered part
of the scope of original invitation. if he goes in w/o permission, status changes to trespasser.
o Note 7 – duties to protect against criminal attack from 3 rd person.

Child Trespassers
 Attractive Nuisance Doctrine –
o when a landholder sets before young children a temptation that he has reason to believe will
lead them into danger, he must use ordinary care to protect them from harm [Keffe v.
Milwaukee].
o Originally one requirement was that the child had to actually be lured onto the premises b/c of
the dangerous condition
 o Most state, including TN, no longer require that the dangerous condition attract the child onto
the property, instead the law in most jurisdictions is Rstmnt Sect. 339 [p 499].
 Limited to artificial conditions, no opinion on whether it should apply to natural
dangerous conditions on land. Burden of protecting against natural conditions is greater.
 Five Factor Test [analyze all five]
 the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass
o has reason to know means the person had actual facts/ knowledge that
would put reasonable person on notice that children trespass, different
than should have known which may impose duty to inspect. Things like
seeing children, bike tracks, candy wrappers, location next to elementary
school, etc
 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
o dangerous conditions not just conditions that can be harmful to a child,
b/c almost anything can harm a child
 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
 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
 the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
Persons Privileged to Enter Irrespective of Landowner’s Consent
 Some people are allowed to come onto your land whether you want them to or not
 Legal license to come onto your land
 Many courts have considered these people invitees, which means duty to keep property safe &
eliminate conditions these people could foreseeably encounter
 Law/Courts hasn’t been so nice to firefighters & policemen, generally treated as licensees, “firefighter
rule”, reasoning is that these types of people are already getting extra compensation b/c of the
hazardous nature of their job (workers comp, etc), know there are risks of the job
 They show up at unexpected times, burden would be the same as keeping the place safe for
trespassers
 5 approaches p. 501
Rejection or Merging of Categories
 Rowland v. Christian
o P was at D’s house as social guest (licensee), asked to use bathroom and severed tendons &
nerves on cracked handle of cold water faucet.
o To licensees is duty to warn of known non-obvious dangerous conditions
o Court rejected distinctions – everytime landowner is aware of a concealed condition involving in
the absence of precautions an unreasonable risk of harm to those coming in contact with it and
is aware that person on the premises is about to come in contract with it, the trier of fact can
reasonably conclude that a failure to warn or to repair the condition constitutes negligence
o Landowners have general duty of reasonable care to everyone
o Duties apply to occupied premises, not just owned premises
o Trespasser climbs over fence at night & falls in hole in backyard and breaks leg, does
reasonable care under circumstances require person to cover up holes? no, not reasonably
foreseeable/low probability someone would come onto property at night. wouldn’t want to say
that owner owes a duty to keep premises safe for trespassers that would break in at night.
reasonable care under circumstances wouldn’t require that duty.
o eliminating “no duty” rule opens up potential for litigation. no duty means immunity, no lawsuit.
o no increase in lawsuits in places that have adopted Rowland v. Christian
o 15 states adopted this case [note 3 pg 506], many others including TN have
eliminated distinction b/t licensees & invitees but kept rule for trespassers
o Draft of Rstmnt 3rd - duty of reasonable care to land possessors to all entrants upon the land
except a small group of trespassers known as flagrant trespassers, enter with intent to do
mayhem or other crimes while on the property
o Tennessee –
 1984 TN S. Ct abolished distinction b/t invitees & licensees & said everyone who’s on
land with permission is entitled to a general duty of reasonable care under the
circumstances [Gaiton v. Hudson. Social guest, woman exited door & stepped out, steps
were going down and there was no railing or landing].
 Retain the distinction for trespassers – occupant of land owes them only duty to refrain
from willful or reckless conduct for discovered trespassers you owe the same duties
discussed above reasonable care to avert harm from dangerous activities & duty to warn
of known dangerous conditions
 Children – TN has adopted Rstmnt 339 and it’s 5 factors
 Recreational Use Statutes 70-7-101 – landowners are not liable to people who are
injured on the land while engaging in recreational activities such as hunting, hiking, etc
even if they’re there with permission. it’s to encourage people with large amounts of
land to let people come in and use the land for recreational purposes without fear of
being sued.