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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