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17 Cards in this Set

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§ 328D Res Ipsa Loquitur
§ 328D Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
(2) It is the function of the cout to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
Premisis Liability
Ill 6
6. A's premises are damaged by water escaping from a main under the street. The main was originally installed by B Company, which has at all times had exclusive control of its inspection and maintenance. There is expert evidence that water mains made of proper material and properly installed, inspected and maintained, do not ordinarily break. Without other evidence, it may be inferred that the escape of the water was due to the negligence of B Company.
Premisis Liability
Ill 7
7. A, a customer in B's store, slips on a banana peel near the door, and falls and is injured. The banana peel is fresh, and there is no evidence as to how long it has been on the floor. Since it is at least equally probable that it was dropped by a third person so short a time before that B had no reasonable opportunity to discover and remove it, it cannot be inferred that its presence was due to the negligence of B.
Premisis Liability
Ill 8
8. A, a pedestrian on the public sidewalk, is injured by the fall of a sign from the front of a building owned by B and leased to C. Both B and C are under a legal duty to members of the public using the highway to exercise reasonable care to inspect and maintain the sign. It can be inferred that the event was due to the negligence of both B and C.
Premisis Liability
Ill 9
9. A undergoes an operation. B, the surgeon performing the operation, leaves it to C, a nurse, to count the sponges used in the course of it. B is under a legal duty to A to exercise reasonable care to supervise the conduct of C in this task. After the operation a sponge is left in A's abdomen. It can be inferred that this is due to the negligence of both B and C.
Premisis Liability
Ill10
10. A buys from a retail dealer a bottle of beer, bottled by B. While he is handling the bottle it explodes, and injures him. Without other evidence, it cannot be inferred that the event was, more probably than not, due to the negligence of B. But if there is sufficient evidence that nothing was done by A or the retail dealer or by intermediate handlers of the bottle to cause the explosion, the inference of B's negligence can be drawn.
Special Responsiblity
Res Ipsa Loquitor
Carriers
h. Special responsibility. Against some defendants, such as carriers, who have undertaken a special responsibility to the plaintiff, some couts have made use of the phrase "res ipsa loquitur" to impose upon the defendant a procedural disadvantage, even in the absence of such an inference that the negligence was more probably that of the defendant than of another. Thus where a vehicle operated by a ccommon carrier collides with another vehicle and a passenger is injured, these couts apply res ipsa loquitur in favor of the passenger against the carrier, but not against the driver of the other vehicle. Such an application sometimes is accompanied by an increased procedural effect, creating a presumption against the carrier or imposing upon it the burden of proof. Such cases go beyond the rule stated in this Section, and represent in effect a special rule applicable to such defendants.
Premisis Liability
§ 328E Possessor of Land Defined
A possessor of land is

(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
Premisis Liability
§ 329 Trespasser Defined
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.
Premisis Liability
§ 330 Licensee Defined
A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent
Premisis Liability
Persons Included Under License
3 Types
1. One whose presence upon the land is solely for his own purposes, in which the possessor has no interest, and to whom the privilege of entering is extended as a mere personal favor to the individual, whether by express or tacit consent or as a matter of general or local custom.

2. The members of the possessor's household, except boarders or paying guests and servants, who, as stated in § 332, Comments i and j, are invitees.

3. Social guests.Some confusion has resulted from the fact that, although a social guest normally is invited, and even urged to come, he is not an "invitee," within the legal meaning of that term, as stated in § 332. He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor.
Premisis Liability
§ 332 Invitee Defined
§ 332 Invitee Defined

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
Premisis Liability
§ 332 Invitee Comment
a. Invitee. "Invitee" is a word of art, with a special meaning in the law. This meaning is more limited than that of "invitation" in the popular sense, and not all of those who are invited to enter upon land are invitees. A social guest may be cordially invited, and strongly urged to come, but he is not an invitee. (See § 330, Comment h.) Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. Such persons fall generally into two classes: (1) those who enter as members of the public for a purpose for which the land is held open to the public; and (2) those who enter for a purpose connected with the business of the possessor. The second class are sometimes called business visitors; and a business visitor is merely one kind of invitee. There are many visitors, such as customers in shops, who may be placed in either class.
Liablity of possessors to tresspassers
General Rule
§ 333 General Rule

Except as stated in §§ 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care

(a) to put the land in a condition reasonably safe for their reception, or

(b) to carry on his activities so as not to endanger them.
Liablity of possessors to tresspassers
§ 334 Activities Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
Liablity of possessors to tresspassers
§ 334 Activities Highly Dangerous to Constant Trespassers on Limited Area
Comment E
Effect of Signs Prohibiting Tresspassers
e. Effect of signs prohibiting trespassers. Knowledge of the persistent trespasses or of facts which should inform the possessor of them, is necessary to subject the possessor to liability under the rule stated in this Section. Therefore, he is not subject to liability if he has taken steps which a reasonable man would believe to be effective in excluding trespassers or in putting an end to their trespasses, unless he discovers that they are ineffective or has some peculiar reason to believe that they will not be effective. Thus it is not enough that the possessor has posted notices to the effect that "trespass is not permitted" or that "trespassers will be prosecuted," if he knows or has reason to know that such notices are disregarded either as a matter of general custom or at the particular place. If the steps taken by the possessor, no matter how reasonable when taken, prove to his knowledge ineffective, he is required to take into account the probable presence of trespassers within such area and to conduct his activities with reasonable regard for their safety.
Liablity of possessors to tresspassers
§ 334 Activities Highly Dangerous to Constant Trespassers on Limited Area
Comment F
Effect of Warning of Dangerous Activities
f. Effect of warnings of dangerous activities. Since a trespasser is not entitled or privileged to enter the land, the possessor, in the absence of reason to know to the contrary, is entitled to expect that a warning of his intention to carry on a dangerous activity will be sufficient to enable even constant trespassers upon a limited area of his land to avoid harm. Therefore, reasonable care to give adequate warning is sufficient to relieve the possessor from liability unless after he has or should have become aware that a trespasser has not heard or does not intend to obey the warning, he has the opportunity by the exercise of reasonable care to avoid injuring the trespasser.