restatement third torts, trespass, torts, premises liability
In §§ 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common law have largely focused on the foreseeability of the trespasser and of the likelihood of injury from the disrepair of the premises. The Restatement (Third) takes a different approach by focusing on the flagrancy of the trespass, a concept with significant moral connotations. I argue that this approach has severe problems. The notion of flagrancy conjures up at least two overlapping visions. One is the purpose of the trespasser in committing the trespass, such as whether to commit a crime. The other is the frequency of the trespass; the more frequent the trespass the more foreseeable it is to the possessor of the premises. But since frequency, after a point, shows a total disregard of the rights of the possessor, it can lead to the conclusion that, what would have been an actionable injury, is now without a remedy because of the flagrant disregard of the rights of the possessor. Moreover, by focusing on the moral culpability of the injured trespasser, it requires juries and courts to make moral judgments with large subjective components. This possibility is recognized by the reporters in their explicit recognition and expectation that different jurisdictions might have different notions of what is 'flagrant.' Whether a restatement of the law that accepts that different states will look at things differently is actually a 'restatement' is a matter that deserves serious consideration.
George C. Christie, A Comment on Restatement Third of Torts’ Proposed Treatment of the Liability of Possessors of Land, 37 William Mitchell Law Review 1485-1491 (2011)