« Did excessive centralization help inflate the housing bubble? | Main | Entry Level Hiring Survey »

Monday, April 12, 2010

Fun (Sort of) With Torts

Sometimes hypos really do happen.  I haven't studied Torts since Professor Judge Calabresi utterly confused me taught me the basic course. (In all seriousness, he was a delightful professor; but I still haven't thought about the subject in any sustained way since then.)  So, here's the not-so-hypothetical hypo that happened to me this weekend. Is this grist for a good Torts exam question or is it too easy?

A victim (call him B) is working with his partner (P) in the backyard of their New York apartment (yes, some New York apartments do have backyards; like I said, this isn't made up).  P instructs B to enter into neighbor's (N's) yard to retrieve some hanging lights that are B and P's property.  Why are the lights on N's property?  Because Landlord (L), who owns both properties, recently had both yards relandscaped (yes, some New York City backyards are landscaped -- sort of).  When doing the landscaping work, L's workmen scrambled the possessions of the two renters.  Why can B enter N's backyard?  Because L constructed the fence with a gate that contains no lock.  Indeed, in the past N and P have entered each other's backyards to retrieve items left on the other side by L's workmen.

After some etiquette-based hesitation grounded in part on the fact that a non-resident guest of N was recently in the backyard, B enters into N's yard, where two large brooms are left strewn on the ground.  B trips, and injures his knee.  Ultimately, though, he is able to retrieve said hanging lights and returns, limping, back to his own yard.

Who could I B successfully sue?

Posted by Bill Araiza on April 12, 2010 at 04:58 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fun (Sort of) With Torts:



Posted by: Martin Rooney | Apr 15, 2010 8:56:25 AM

Marty: I think I can get summary judgment for any defendant under my state's law (not New York). So you might be able to get a settlement of up to less than the expected cost of defending the suit, but given that I can get pre-trial judgment as a matter of law, you're not getting far into anyone's deep pockets.

Posted by: joe (a.b.) | Apr 14, 2010 9:39:41 PM

Well, it is obvious not many here are real world tort lawyers. First, what is a sucessful suit? Do you mean one where the state supreme court would uphold the decision, or do you mean how much money can I (as plaintiff's ambulance chasing attorney) squeeze out of whose insurance company?? Since the second is the real world issue, let's look closer:

1. Landlord. Almost certainly insured, and owns property in any event. Possible liability for negligent hiring of contractor (who negligently moved tenants' belongings). Possible liability for negligently maintaining the property (gates without locks in this day and age! For shame!) Was the lighting adequate? Was there a history of other incidents? How long had the brooms been there? Are you sure you, err B, tripped on the brooms? Any hidden defects in the area - a hole or unlevel area not repaired by contractor? (B did of course take tons of photos with his cell camera to establish the conditions at the time. And, of course, B has been to his chiro and is on crutches home from school).
2. Contractor: Insured most likely, although you might have some gypsy outfits floating around - see negligent hiring above. Negligently moved tenants' property. Were the brooms the contractor's? Did contractor fail to properly level the yard? If work was still on-going, did contractor properly mark/flag/warn of unfinished work? Properly permitted by NYC?
3. Neighbor: Again, probably insured. Neighbor failed to warn P of dangerous defects in property, failed to clean property, left brooms lying around, who knows what guest is doing (nude sunbathing in NYC in April is a stretch - if you were still in CA???)
4. Guest: Unknown financial status. Should have known of brooms and warned thereof. Other failures to warn?
5. Partner: Presumably insured. Let's not forget partner!! Sends unsuspecting injured party B to his date with destiny. Knew/should have known (from prior retrieval trips (pun intended)in N's yard) of dangerous conditions on the land and failed to warn. Intentional tort - any recent spats? Negligent? Spousal immunity? Insurance fraud?
6. NYC: self insured, worth alot. I smell a code violation somewhere in here. Backyards with gates without locks? But governmental immunity makes this unlikely, and they probably wont settle early.
7. Manufacturers: Certainly insured. Should the broom handle be safety orange? Non locking gate without warning signs. Big money here.

CAVEATS - yes, the answers will vary by state. Also would be nice to know what the comparative negligence rules are in the jurisdiction. Also, I almost forgot the most important consideration -- what is the jury pool like!!

Hope your better soon Bill, so you can Sue the Bastards.


Posted by: Martin Rooney | Apr 14, 2010 3:35:35 PM

I would say no one. Although NY has abolished the rigid categories of entrants on the land, the categories can still be taken into account to determine the foreseeability of the harm that occurred to make out breach of any duty of reasonable care. Technically, it makes no difference whether he is a trespasser, foreseeable trespasser or licensee. So, there is a duty, but the improbability of someone entering your fenced yard uninvited and without your knowing about it and tripping over a broom on the ground (can a broom really be "strewn") probably necessitates that it's not breach of the duty.

I would say there is no liability for the landlord though he did breach a duty of reasonable care by mixing up your property with another. However, the harm that can foresseably occur because of that breach does not include tripping over a broom on your way to retrieve it. This is a proximate cause problem.

But yes, not enough blood and guts for a really good Torts question! Lyrissa is the expert, so ask her.

Posted by: Christine Hurt | Apr 13, 2010 11:08:44 AM

Tort law is state law, so you probably need a NY torts person to give accurate advice. But it seems to me the issues are these:

(1) Is B a trespasser? This is legally relevant because some states say that landowners owe a lower duty to trepassers [see (2) below]. Normally, intentionally entering land that is not yours = trespasser. The plaintiff here could, it seems, argue the defense of consent, given that the parties had apparently consented in the past to a practice of entering each other's property for the purpose of retrieving objects misplaced due to the landscaping. One would need to check NY precedents on this. So B is either a trespasser or not.

(2) Some states (dunno about NY) say that landowners owe a lower duty of care to trespassers -- in short, defendant would have to know about the danger on defendant's land AND see plaintiff trespasser approaching the danger. At that point, given a friendly neighbor relationship, defendant would probably have a duty to warn plaintiff about the danger. Here, presumably, you didn't see B approach. There is no duty, in these states, to make your land reasonably safe for trespassers you don't know about.

(3) But a number of states have abolished the old common law categories of entrants on the land (invitee, licensee, and trespasser) such that for all landowners, the duty of care to folks who come onto their land is simply "what a reasonable person would do under the circumstances." Of course, a person being a trespasser is a "circumstance," so even in these jurisdictions defendants would presumably at least usually be able to do less and still not violate the duty of care if the plaintiff was a trespasser.

Complicating this here, though, is the fact that you knew (or reasonably should have known) that this sort of trespass was likely.

Which gets us to what a "reasonable person" would have done about the hazard the brooms represented, given what you knew. And you can run with that as well as I could.

(4) Even if plaintiff could make out a prima facie case (and duty/breach would be the big issues), it sounds as if there could still be a comparative negligence defense (or maybe even assumption of the risk) in plaintiff tripping over the broom, depending on how that actually happened.

Which is all a way of me saying I don't know, but thanks for giving me the opportunity to procrastinate from my work.

Posted by: Joseph Slater | Apr 13, 2010 10:22:53 AM

If you do give this question to your students, I would recommend you mercifully use "Partner" throughout instead of P, "Neighbor" throughout instead of "N," and so on. I got lost in the alphabet soup by the second sentence. I'm not sure that keeping track of letters is the type of skill that professors should test.

Posted by: andy | Apr 13, 2010 3:03:09 AM

This reminds me of one of the more memorable episodes of The People's Court, which I used to watch back when Judge Wapner was doing it. D goes into stranger's garage to retrieve basketball that had rolled in there, knocks over pole, causes damage to car. Argues that pole was precariously balanced. Wapner: "That's your defense?!" Judgement for plaintiff; I don't think he even took a recess.

Posted by: Bruce Boyden | Apr 12, 2010 11:00:10 PM

B cannot successfully sue anyone. I don't see how it's even a close call.

Posted by: joe (a.b.) | Apr 12, 2010 10:49:12 PM

Bill: No problem. Hope your knee gets well soon. :)

Posted by: Anonsters | Apr 12, 2010 8:12:21 PM

Anon: Thanks! That certainly would have made my Sunday more interesting.

Posted by: Bill Araiza | Apr 12, 2010 7:38:02 PM

There isn't enough nudity or death for it to be a good torts exam hypo, sorry. Instead, B should trip over a broom left strewn on the ground, because B was utterly shocked at walking into the backyard to find the non-resident guest of N (G) sunbathing in the nude, whereupon G screams at B to get out. B then turns, with an injured knee, and tries to scramble back to the other side of the fence, tripping over the second broom and falling onto the ground, where B strikes his head, with a great effusion of blood. B, now unconscious, comes to a rest inside N's carefully-tended, prize-winning therapeutic flower garden, which N has been cultivating for 10 years, thereby ruining the flowers.

Posted by: Anonsters | Apr 12, 2010 5:09:36 PM

The comments to this entry are closed.