April 4, 2009
Land Possessor Liability in Restatement Third
Yesterday's final panel of a fantastic conference included Keith Hylton (Boston), James Henderson (Cornell), and Stephen Sugarman (Berkeley). The panel was moderated by Simone Rose (Wake Forest). Prior to the discussion, Mike Green noted that land possessor liability was the only section in R3 that was not yet approved.
Hylton presented Tort Duties of Landowners: A Positive Theory. His goal was to describe, using economic theory, the purpose served by the common law status categories. He argued that the categories placed liability for defective land conditions on the party most likely to know of the risk or to avoid the risk. This served the function of regulating the scale of activities. For invitees, who are often visitors for an economic purpose, the landowner is more aware of the risks, and is in a better position to know what the potential costs of the invitee's visit will be (including potential injuries). If the burden of reasonable care is placed on the landowner, s/he will cancel those visits that are not cost-justified. Licensees, who are often social guests, are more likely to know of potentially defective conditions than are invitees. They often have preexisting knowledge of the host. Throwing the cost of injury on licensees forces them to make good decisions about accepting the invitation and the activities undertaken on the premises. Hylton noted he was not arguing for the retention of the categories. He simply stated we should be aware of the function they served, in order to determine what, if anything, should serve the function in lieu of the categories.
Henderson discussed The Status of Trespassers on Land. He began by noting that he is a process person. In his on work on the Restatement of products liability, Henderson saw his role as creating a robust motions practice. In short, he is opposed to legal uncertainty. He stated that, unlike R3, he would probably have retained the common law status categories. Given that the categories were not retained, Henderson focused his remarks on R3's use of the term "flagrant trespassers." The only vestige of the categories remaining in R3 is a type of trespasser deemed flagrant. The idea is to separate "casual" trespassers from those displaying serious disrespect for property rights. Henderson argued that the term flagrant was insufficiently defined.
Sugarman presented Land Possessor Liability in the Restatement Third of Torts: Too Much and Too Little. In contrast to Henderson, Sugarman prefers standards to rules. He argued that the entire section devoted to land possessor liability was unnecessary because traditional negligence principles apply. In other words, these issues can be resolve with the principles put forth in sections 7A and 7B. He further argued that an advantage of grouping all negligence issues in the same place is that it would allow us to see and think about common problems in various fact scenarios. Sugarman offered the example of determining when a warning is sufficient versus having to actually repair something.
You can listen to the panel discussion here.
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