Possessor knows or has reason to know children will trespass Possessor knows or should realize the condition creates an unreasonable risk of death or serious harm to children Children did not discover or realize the risk Balance of utility and risk supports eliminating condition Possessor failed to exercise reasonable care Alternative to Common Law Approach: general duty of reasonable care to entrants on land based on Rowland factors; status of entrant remains relevant in determining foreseeability Duty to Prevent/Protect against dependent on foreseeability How to Determine Foreseeability Totality of the Circumstances Takes additional factors into account, such as nature, condition and location of the land as well as circumstantial factors Favors P more because considers all factors that could have harmed P Balancing If high foreseeability and gravity of harm, then substantial burden on D If lesser degree of foreseeability or slight harm, then less onerous burden High degree of foreseeability necessary to impose a duty to provide security will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property Duty for Non-Physical Harms Zone of Danger: P can recover for severe emotional distress where near impact Breach Balancing Test (did D act with reasonable care?) Hand Formula: B<PL = Negligence Other Factors: foreseeability of harm, magnitude of harm, social utility of D’s action Reasonably Prudent Person
Possessor knows or has reason to know children will trespass Possessor knows or should realize the condition creates an unreasonable risk of death or serious harm to children Children did not discover or realize the risk Balance of utility and risk supports eliminating condition Possessor failed to exercise reasonable care Alternative to Common Law Approach: general duty of reasonable care to entrants on land based on Rowland factors; status of entrant remains relevant in determining foreseeability Duty to Prevent/Protect against dependent on foreseeability How to Determine Foreseeability Totality of the Circumstances Takes additional factors into account, such as nature, condition and location of the land as well as circumstantial factors Favors P more because considers all factors that could have harmed P Balancing If high foreseeability and gravity of harm, then substantial burden on D If lesser degree of foreseeability or slight harm, then less onerous burden High degree of foreseeability necessary to impose a duty to provide security will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property Duty for Non-Physical Harms Zone of Danger: P can recover for severe emotional distress where near impact Breach Balancing Test (did D act with reasonable care?) Hand Formula: B<PL = Negligence Other Factors: foreseeability of harm, magnitude of harm, social utility of D’s action Reasonably Prudent Person
Torts-Kim-2015.docx