Statute of Limitations Wisconsin Strict Liability - PowerPoint by yzs75197

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									Class 20, Chapter 7, Cont.
  Rights and Limitations in the use of Agricultural Property
 Hmk #3 due Wed or Friday after “Oct. Break”

 Cases                             Students
Nye       -- action, issue and facts, Justin
          -- holding and rule, Michael
Ciaglo – action, issue, facts– Lance Hoffman
                  Law, Holding & rule– Aaron

                Lane – volunteers ?
Katko –        action, issue, facts– Andy
                 law, Holding & rule– Kent
Mcgaughey – action, issue, facts– Holly
                  Law, Holding & rule – Melissa
Jones -- action, issue, facts– Adam
                  Law, Holding & rule– Courtney
T& F and MC – 2.5 points --Test 1
                                                  4. ___ Lawyers are disbarred,
   1. __ In Indiana, an individual may            reprimanded or suspended from “practice
    represent him or herself in a "county"         of law” by the local, Circuit Court, if they
    (small claims) court.                          are proven to have mistreated a client.

   2. __ In a civil action (e.g., a small        5.___ In Indiana, under comparative
    claim case) the plaintiff has the burden       fault law, if a plaintiff is held to be 40% at
    of proof to show that the defendant is         fault, plaintiff recovers up to 60% of the
    liable to him or her for damages.              proven damages.

   3. __ In regard to the Indiana court          6. ___ In Indiana, farm employees have
    system, generally:                             access to Workman's Compensation

                                                   when “on the job” and injured while
                                                   working for a farm neighbor of the
   a The Supreme Court takes appeals              employer.
    directly from the County Court.
   b. circuit court is a trial court.            7. ___ A "strict foreclosure" clause in a
    circuit court is a trial court                 farmland installment contract may allow
   c. The Indiana Court of Appeals has a          the seller to take back possession of
    lot of jury trials.                            the land.
   d. All of the above.
Test 1 Objective--continued.
   8. ___ "John Brown and Mary Smith,"
    it says (and this all it says) in the
    grantee clause of a deed for land in
    Indiana. They are husband and wife            11. __ "John Brown and Mary Smith,"
    under Indiana law. John and Mary are:          it says (and this is all it says) in the
   a. Joint tenants with right of                 grantee clause of a deed for farm land
    survivorship.                                  in Indiana. John and Mary are not
                                                   married, but “good friends” with
    b. Tenants-in-common.                         children. John and Mary are:
   c. Life tenants with a remainder              a. Joint tenants.
    interest in their children.                    b. Tenants-in-common.
   d. Tenants-by-the-entireties.                 c. Life tenants with a remainder
   e. Individual sole proprietors in a            interest in their children.
    partnership.                                   d. Tenants-by-the-entireties.
   9. ___ In contract law, a "memo" of
    the essentials, received in a                 12. __ In an inverse condemnation
    reasonable time, that is ignored, is not       proceedings, the property owner, is
    enforceable unless the party who sent          the plaintiff.
    the memo is a "merchant."
   10. ___ According, to the "rectangular
    survey system," the SE 1/4 of the SW          13. __ Limitations placed on land by a
    1/4 of a regular Section in "Whatever"         zoning ordinance is a “taking” subject
    Township is:                                   to compensation under eminent
    a. 80 acres. b. 640 acres. c. 120             domain law.
    acres. d. 160 acres. e. 40 acres
Test 1 – Objective – conti.
                                                 17. ___ Failure to follow “the label” for
   14.__ An essential feature in an              a pesticide may:
    (effective) recordable deed:                  a. bring strict liability
   a. Price paid must be clearly stated.         b. be negligence
   b. “Words of conveyance” by the               c. both a. and b.
    grantor.                                     18. ___ Landowners need not be
                                                  concerned about liability for a
   c. “Words of acceptance” from the             trespasser’s injury, due to the Indiana
    grantee. d. Who prepared the                  “Recreational User’s” statute.
    document.                                    a. Unless there is an “attractive
   e. b. and d.                                  nuisance”
                                                  b. unless landowner “sets a man
   15. __ Under the "Statue of Frauds"           trap”
    in Indiana, a pre-nuptial agreement          c. both a and b
    requires monetary consideration to           d. generally, true
    be enforced.                                 e. all of the above.
                                                 19. ___ Oral contracts for $10,000 or
   16. __ Across the Midwest, crop               more will not be enforced in a court of
                                                  law.
    spraying is an ultra-hazardous activity
                                                 a. True, never, due to the “parol
    according to the “Restatement (2nd) of        evidence” rule
    Torts.                                         b. False, but only when there is an
                                                  equitable remedy.
                                                  c. False, but only under the
                                                  “merchant’s exception.”
      Duty to protect those on Ag land &
             potential for liability
   Landowners or farmers are not necessarily liable
    for those who are injured on their land.
   At common law, the duty owed to an individual
    on one’s land depends on his or her status or
    reason for being there.
   Such as:
   Trespasser, licensee, or invitee.
             Potential for liability: to a
                     Trespasser
   Duty owed a trespasser is slight.
   The landowner must avoid malicious conduct
    or unnecessary force.
   If a dangerous condition is known, there may
    be a duty to warn a known trespasser!
   “Extra” force may be used with the
    commission of a criminal act.
   But, it is a risky business to willfully injure a
    trespasser.
      Potential for liability: to a Licensee

   Definition -- one who enters with permission for his or
    her own business purpose rather than that of the
    landowner or tenant.
   Duty or standard of care rises compared to a trespasser.
   Duty to warn of “dangerous conditions.”
     a hunter may be an example

     “recreational user” statutes modify the requirements in

       this area such as Indiana’s at
        IC 14-22-10-2 ( Go to Indiana Code)

        http://www.state.in.us/legislative/ic/code/
    Potential for liability: To an Invitee
Someone on the property related to the owner or
  farmer’s business,
 e.g., a repairman, a u-pick customer.

 Duty owed him or her is higher than that for a
  licensee.
 The invitee is entitled to find the premises
  reasonably safe.
 Note, Indiana case law has equated the
  social guest with the invitee!
   Formerly, a “social guest,” merited less

     protection than an invitee.
   A research paper topic!?
          Nye v. Union Camp Corp.
        U S D Ct. S.D. Ga. 1987, 677 F. Supp. 1220
   Justin --- Action?
    Negligence.
   Issue?
     What duty is owed to Nye on the defendant’s
    property?
   Facts: Nye and others were at a lake when
    Nye decided to dive in for a swim at night.
   He hit his head on a stump.
   The lake was apparently private property, but
    regularly accessed via a road by the public.
                           Nye
   Defendant admits that the lake was used by the
    public, but also stated that it was posted with no
    trespassing signs. (Do the signs matter?)
   Defendant argues that Nye had no express
    permission to enter, and they deny knowledge
    of the presence of people at the time Nye was
    injured.
                          Nye
   Michael --- Holding?
   Duty owed Nye was, at most, that of a licensee.
   The lake is held not to be a “man-trap.”
   The stump in the lake cannot constitute a hidden
    peril, and there is no evidence the defendant
    had knowledge of the stumps alleged to be in
    the lake.
   Motion for summary judgment is granted.
    (Note this is a trial court opinion.)
   Another area for a research paper!
       Farmland Lakes in Indiana …
Indiana law of “Rec. User”
   IC 14-22-10-1
    Consent to use private land
       Sec. 1. A person may not:
         (1) fish, hunt, trap, or chase;
         (2) shoot with any kind of firearm or archery equipment;
         (3) search for or gather any plant life (defined as the
    members of the kingdoms Fungi and Plantae); or
         (4) search for or gather any artifacts (as defined in
    IC 14-21-1-2);
    upon privately owned land without having the consent of the
    owner or tenant of the land.
    As added by P.L.1-1995, SEC.15. Amended by P.L.186-2003,
    SEC.59.
    Trespassing Hunter
   All recreational user statutes cover hunting.
     i.e., There is no duty of care extended.



   Even without a “rec user” statute, the duty owed to a
    trespassing hunter is slight.

   If there is a fee charged for hunting, that takes
    the landowner or tenant out from under a “rec
    user” statute protection
   However, an exception may exist for govn’t payment
    to landowner to allow hunting.
      Trespassing Hunter

   No one may hunt without permission from - either the
    landowner or tenant, if the land is leased.
     (A landowner normally gives hunting rights to the

      tenant, unless, they are reserved in the lease.)
   To hunt without permission is trespassing!
   To trespass may be a criminal act if there has been
    notice--oral or by a sign.
   A No Trespass sign is notice in Indiana.
Criminal Trespass

   Criminal trespass, like all criminal offenses, is
    by statute.
   The sheriff may assist once the criminal
    trespass is established. (i.e, the trespasser is
    “out there.”)
   Next, the prosecutor must take up the case
    and see that “justice” is done.
“Recreational User” law
    IC 14-22-10-2.5
    Restrictions on landowner liability to hunters, fishers, and
    trappers
       Sec. 2.5. (a) A person who goes upon or through the
    premises, including caves, of another:
         (1) with or without permission; and
         (2) either:
            (A) without the payment of monetary consideration; or
            (B) with the payment of monetary consideration directly
    or indirectly on the person's behalf by an agency of the state or
    federal government;

   for the purpose of hunting, fishing, trapping, or preparing to
    hunt, fish, or trap, does not have an assurance that the
    premises are safe for that purpose.
       (b) The owner of the premises does not:
         (1) assume responsibility; or
         (2) incur liability;
    for an injury to a person or property caused by an act or failure
    to act of other persons using the premises.
Rec User law ---However!
   IC 14-22-10-2.5

     (c) This section does not affect Indiana
    case law on the liability of owners or
    possessors of premises with respect to the
    following:
          (1) Business invitees in commercial
    establishments.
          (2) The attractive nuisance doctrine.
       (d) This section does not excuse the owner
    or occupant of premises from liability for
    injury to a person or property caused by a
    malicious or an illegal act of the owner or
    occupant.
                Ciaglo v. Ciaglo
      Ill. App. Ct. 1959, 156 N.E. 2d 376

   Lance Hoffman ---- Action:?
   Negligence
   Issue?
   What degree of care was owed the plaintiff?
    That is, was pl an invitee or license?
                          Ciaglo

   Facts: A visiting Mom was injured while picking
    plums on a Wisconsin farm.
   A yearling bumped the ladder she was on,
   and Mom grabbed a limb for support which broke,
    and she fell, and was injured.
   Plums were to be for sale by the farmer/son def.
   Trial judge, after the evidence, instructed the jury to
    find for the defendant.
                       Ciaglo
     Did the def. know of the animal’s propensity
      for mischief?
     Aaron Patten

   Holding: Affirmed the lower court.
     The trial court held that the pl was a social
      guest or licensee not an invitee or an
      employee. Therefore, the son, def, owed his
      mother only reasonable care.
     A social guest must show active negligence

      to recover, i.e., willful and wanton misconduct
      must be shown.
                       Ciaglo
   Holding:
   Minor services of a social guest do not elevate
    them from a licensee to an invitee, and thus
    increase the duty of care owed them to be
    entitled to reasonably safe conditions.

   Standard: If the risk of harm cannot not be seen
    by a reasonable and prudent man, it is not
    unreasonable,
   therefore, no negligence, and no liability.
                   Lane v. Titchenel
        App. Ct. of Ill., Fifth Dist., 1990 562 N.E. 2d 1194

   (volunteer)
   Action?
   Negligence
   Issue?
   Is this case within the protection of the
    “recreational use” statute in Illinois?
                      Lane
   Facts:
   Plaintiffs were on def property for a
    hayride in conjunction with a party for
    Andy’s Body Shop
   The hayrack was provided by the
    defendant.
                        Lane

- Defendants had routinely allowed recreational
   activities on their land without charge, and
- the trial court granted the defendant a request for a
   summary judgment.
   -- (Which means, no facts are at dispute for the jury
   to decide, and the law is on the side of the movant
   -- a motion maker.)
                   Lane --- Holding:

   (volunteer)
   The “act” defines “specific activities” covered, so the pl
    argues that since hayrides and wiener roasts are not
    listed the “act” can’t be a defense.
   But, the activities of the pl were like “recreation” and
    other activities mentioned in the statute
   Thus, the protection of the “rec user” statute did apply.
   Rule: When the Rec User statute applies, it’s a liability
    defense for negligence …
Indiana “Rec. User Statute” -- IC 14-22-10-2
Restrictions on landowner liability to recreational users
   ) A person who goes upon or through the premises,
    including caves, of another:
          (1) with or without permission; and
          (2) either:
             (A) without the payment of monetary
    consideration; or
             (B) with the payment of monetary consideration
    directly or indirectly on the person's behalf by an agency
    of the state or federal government;
   for the purpose of swimming, camping, hiking,
    sightseeing, or any other purpose (other than the
    purposes described in section 2.5 of this chapter) does
    not have an assurance that the premises are safe for the
    purpose.
Indiana Rec. User Statute -- IC 14-22-10-2
Restrictions on landowner liability to recreational users
      (e) The owner of the premises does not:
          (1) assume responsibility; or
          (2) incur liability;
    for an injury to a person or property caused by an act or
    failure to act of other persons using the premises.
    (f) This section does not affect the following:
          (1) Existing Indiana case law on the liability of
    owners or possessors of premises with respect to the
    following:
       (A) Business invitees in commercial establishments.
        (B) Invited guests.
   (2) The attractive nuisance doctrine.
   (g) This section does not excuse the owner or occupant
    of premises from liability for injury to a person or property
    caused by a malicious or an illegal act of the owner or
    occupant.
                  Katko v. Briney
             S. Ct. of Iowa, 1971 183 N. W. 2d 657


   Andy ---Action?
   Negligence
   Issue?
   Are the defendants liable for the injury delivered
    by a trap gun to these criminal trespassers?
                          Katko
   Facts: This case involves injury to criminal trespassers
    by a trap gun set in an abandoned house.

   The plaintiffs were the trespassers who had broken into
    the house to steal “antiques.”

   The plaintiffs were awarded $20,000 in actual damages,
    and $10,000 in punitive damages.
   Kent
      Katko--Holding
       There was no warning of the presence of the
       gun--set to hit the intruder once in the house.
       Serious injury was inflicted.

       “Trap guns, historically, have been permitted only
        to “prevent felonies” or for self-defense.”

   Rule: Reasonable force is allowed to protect property,
    but there is no right to seriously injure a trespasser!
    Death or serious bodily injury may be inflicted only in
    self defense.
      Attractive Nuisance: A Rule for
            Trespassing Youth
   Conditions that are attractive to children due
    to their curiosity and lack of judgment.

   The “fault” that may results in liability is that
    the reasonable person should have foreseen
    the danger that exists.
           Attractive Nuisance: A Special Rule for
                        Trespassing Youth

   A possessor of land is subject to liability for bodily injury
    to trespassing young children caused by a structure or
    other artificial condition if:
   The place of the condition is one the possessor knows
    or should know the children will likely enter albeit as
    trespassers, and
   The condition is one the possessor knows or should
    know … involves an unreasonable risk of death or
    serious bodily injury to children, and
    Attractive Nuisance: A Special Rule
           for Trespassing Youth

   Children do not realize the risk.
   Utility of maintaining the risk is slight
    compared to the danger.
   The possessor fails to exercise
    reasonable care to eliminate the danger
    or otherwise to protect children.
                McGaughey v. Haines
                    S. Ct. of Kansas, 1962
   Holly -- Action?
    Liability due to an attractive nuisance
   Issue?
   Was this situation an attractive
    nuisance? Should it be such, as a
    manner of policy?
    McGaughey
   Facts:
   Children who lived next to the defendant farmer
    were attracted to a new tractor and disk.
   They started the tractor, and one fell off, and
    was run over by the disk.
   The children had been repeatedly told to stay
    away, and they had a familiarity with farm
    machinery, and perhaps its danger.
     McGaughey
   Melissa
   Holding:
   Every item of personal property capable of
    attracting and injuring a child can’t be burdened
    by an attractive nuisance status.
   They conclude that a farmer shouldn’t have to
    remove his machinery at the end of each day—
    as a matter of public policy.
   The tractor and disk were held not to be an
    attractive nuisance!?
                   Jones v. Comer
                     S. Ct. of Ark. 1964

   Adam --- Action:?
   Attractive Nuisance
   Issue:
   Was this lake an attractive nuisance?
                      Jones

   Facts: Several boys who lived nearby were
    found drowned in a neighbor’s lake.
   The defendant was granted a summary
    judgment.
                       Jones
   Courtney
   Holding: This pond was not an attractive
    nuisance
   There is no evidence that the old boat or
    anything made this pond an attractive
    nuisance.
   Rule: Short of any unusual element of
    danger, a pond is not an attractive
    nuisance!??

								
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