Re: Brain Trauma Injury

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1. Adverse Possession or Prescriptive Easement? (see last msg)

2. Duties of Landowner to Known Trespasser

Even assuming that P cannot establish prescriptive easement or
adverse possession, farmer did not have the right to undertake the
affirmative action of placing crates across P's path.

Here, the facts state that "This year the farmer decides he is
putting apple crates 2 crates high all the way across the trail."
Recall also that the trail has been "used for years" by
snowmobilers.

Even if snowmobiles were not noisy, i.e., if the trespassers were
skiing or sledboarding down the path, two facts show that Farmer
knew they were doing so. First, they would have left tracks in the
snow. Second, farmer placed the crates in a particular spot that
would block their path. In fact, because snowmobiles not only
leave tracks, but also make noise the compelling inference from the
facts is that farmer knew that snowmobilers regularly trespassed by
snowmobiling down the trail.

Here, Farmer has engaged in an "activity" namely the activity of
placing crates across this particular trail, which he knew that
trespassers frequented on a regular basis. The law of torts that
applies here is that a landowner's has a duty of reasonable care to
a known trespassers, when he engages in activity on his land. That
is, he must act as a reasonably prudent person would do under
similar circumstances.

The activity of deliberately placing crates across a trail that
known trespassers frequently snowmobiled down at high speeds
breached this duty. Certainly, under the Carroll Towing test,
Farmer's burden of not putting the crates there (to prevent the
injury) was outweighed by the likelihood of harm (which
approximates 100% given the speed and visual conditions described
in the fact pattern) and the severity of harm (brain damage or
possible death). There were many other alternatives to Farmer,
including posting "No Trespassing" signs, hiring a security guard
for a few days to confiscate the snowmobiles, reporting the
activity of the trespassers to police, putting up barriers at the
top of the trail to block the trail, etc.

Note that the facts state, "He had no signs up stating the trail
was closed or anything" indicating that Farmer did not undertake
these simple, inexpensive, non-harmful measures before resorting to
actions which would result in harm to P.

Causation is easily established here. As for actual cause, but for
Farmer's actions, P would not have been injured. As for legal
cause, P was a foreseeable P because Farmer knew of the
snowmobilers, and P's injury was foreseeable because when "people
[are] snowmobiling it causes snow to be airborne, [so they] can't
see." Specifically, the type of harm (not seeing the crates due to
the snow blowing around and crashing into them at high speed),
the extent of harm (brain injury from a high speed crash), and the
manner of harm (crates causing a crash of this type) were all
foreseeable to Farmer.

As for contributory or comparative negligence, or assumption of the
risk, the snowmobilers reasonably expected the trail to be clear
and safe for their activity, because they had used it many times
before and had found it to be clear. As noted previously, Farmer
elected not to post any warning signs so that they had no reason to
know that the risk of injury, which had previously been merely the
risk of snowmobiling on a clear trail, was heightened on that day
to a near-certainty. Therefore, P these defenses are not available
to Farmer.

Now, Mikey, is your understanding of Negligence, as relates to the
duty of a landowner, engaging in activities on the land, to a known
trespasser, different from mine?

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