Trial lawyers’ attractive nuances 

‘Rick assaults Sasha on a public street and snatches her purse. In the course of his escape from the scene, he climbs over the fence at Rachel’s bed and breakfast and is injured by an uninsulated electrical wire.”

So, can Rick the purse-snatcher sue Rachel the hotelier, whose property he violated?

This hypothetical — the sort of puzzle placed before law students each year — appears as an example in a recent installment of the prestigious American Law Institute’s “Third Restatement of Torts.”

You’ve probably never heard of that publication or that organization, but it definitely affects your life. It is an influential source of what lawyers refer to as “black-letter law.” It would be just a slight exaggeration to say that judges in civil lawsuits look to ALI’s Restatements the way ministers look to the Bible.

Over 40 years ago, ALI’s “Second Restatement” asserted that landowners had no duty to trespassers except in very limited circumstances — for example, when landowners create “attractive nuisances” that lure children into death or serious injury.

Otherwise, landowners and homeowners could only be held liable if they harmed trespassers through willful or reckless actions. The new “Restatement”, published last year, changes all that.

It imposes on property owners a new duty of “reasonable care” toward all except “flagrant” trespassers. And what constitutes “flagrant” trespass? It is not defined in the new “Restatement,” nor in state tort law.

But apparently, it may not include Rick the purse-snatcher in his flight from the police. “Rick’s commission of the crime,” the document states, “is not relevant to the determination of whether his trespass on Rachel’s land is flagrant.”

This is a huge departure from previous law, as both its supporters and opponents acknowledge. It threatens to permit more lawsuits against innocent homeowners and to increase the cost of homeowner insurance across the board. It also benefits the trial lawyer lobby.

That alone is interesting. But far more interesting that the law professor who drafted that portion of the “Third Restatement” — Michael D. Green of Wake Forest — went on shortly thereafter to co-author an article on how his work can now be used in court to trial lawyers’ advantage.

Green’s co-author on that piece was Larry Stewart, a personal injury lawyer and a former president of the trial lawyers’ main lobbying group, the Association of Trial Lawyers of America — today known as the American Association for Justice.

The article, published in AAJ’s Trial magazine last spring, describes the “Top 10 Tort Tools” that plaintiffs’ lawyers can use from the “Third Restatement” to sue more effectively.

Green and Stewart refer to this new burden on home and business owners as “a reasoned, progressive approach.” A homeowners’ potential liability toward uninvited guests “is not a bright-line concept but one that is left to develop in future cases.”

This means that we just won’t know how it works until some number of homeowners is hauled into court and subjected to costly lawsuits by prison inmates, represented by clever members of AAJ.

In just the last few months, four states — Texas, Oklahoma, South Dakota and North Dakota — have responded to the “Restatement’s” pro-trespasser rules by pre-empting them, passing new statutes on trespassing.

All four states are vast dominions in which trespassing cannot be easily stopped, and where opportunities would otherwise abound for litigious lawbreakers.

ALI is a deeply respected institution, reputedly untainted by politics. It is telling that, for what might be the first time in the organization’s history, states are scrambling to pre-empt its work, not even waiting for new case law to develop.

Columnist David Freddoso is The Washington Examiner online opinion editor.

About The Author

David Freddoso

Bio:
David Freddoso came to the Washington Examiner in June 2009, after serving for nearly two years as a Capitol Hill-based staff reporter for National Review Online. Before writing his New York Times bestselling book, The Case Against Barack Obama, he spent three years assisting Robert Novak, the legendary Washington... more
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