Figure 6.5
Train tracks are a common area for trespassing. (Credit: Muscat_Coach/ pixabay/ License: CC0)
In some cases, however, the property owner could be held liable (Kionka, 2013):
•
When the area in question is a common place for trespassing
•
When the owner knows a trespasser is present
•
When the trespasser needs aid, then the owner has a duty to rescue him or her
•
When the trespasser is a child, and the dangerous activity is deemed as an attractive nuisance, or an
attraction that a reasonable child would wish to view
Even though trespassing can present an exception to liability in the presence of a dangerous activity, it is not a
given. There are numerous exceptions that allow for liability. In effect, strict liability can occur in a given
situation even when the property owner has provided care that goes above and beyond what is reasonable.
The court does not need to establish proof of lack of due care when applying strict liability to a case (Baime,
2018).
Product Liability
Individuals are not always the defendants involved in civil suits. Manufacturers, wholesalers, distributors, and
retailers can also be named in torts that pertain to products and qualify as strict liability (CCBC Legal Studies,
n.d.). Some products contain flaws that were not intentionally created; such flaws may not be discovered until
an individual suffers harm as a result of using them.
It is not always possible to conclusively prove that an act or omission was responsible for the harm (Baime,
2018). As a result, the courts developed the doctrine of res ipsa loquitor, which means that whatever it is
speaks for itself. The burden of proof shifts from the plaintiff to the defendant, who must disprove negligence.
However, the plaintiff must first establish three factors (Baime, 2018):
•
The defendant had control over the product in question while it was being manufactured.
•
Under normal use and circumstances, the product would not cause damage or harm, but damage or
harm has occurred in the case in question.
Chapter 6 The Tort System
69