Elements Outline o Res judicata
 Once a case is over it cannot be tried again o Stare decisis
 The courts are bound by precedent
 Binding vs. persuasive precedent o Congress can only amend statutes, not overrule any courts
 Class Three 5/22/19 o Kelly v Gwinnell
 The appellant is the one who lost somehow and is appealing the decision
 Issue

Who is liable for Kelly’s injuries that were caused when Gwinnell, while driving drunk, crashed into her car? Was there negligence on the part of the Zaks for allowing Gwinnell to drive in his state?
 Facts:

Gwinnell drove Zak home

Stayed for an hour and had two or three drinks

Went to drive home and wrecked his car, a company car, and injured a third party

His blood alcohol level was .286 which is plenty high to be showing visible signs of intoxication

The Zaks called Gwinnells wife to make sure he got home safely
 Procedural History

Zaks filed for summary judgement o Trial court said they were not liable o Appellate court affirmed this decision
 Supreme Court Ruling

Zaks are liable for Kelly’s injuries and were negligent in allowing
Gwinnell to drive home
 Reasoning
 Based on recent changes to the law which held licensed liquor places liable to injuries pertaining to guests they overserved
 Also on another rule that held social hosts liable for injuries that result from serving alcohol to minors
 This follows that a social host is also liable for adult friends
 The zaks knew gwinnell was driving home, they were worried enough to call and check to see if he made it home, and they could have easily forseen someone in Gwinnells condition getting into an accident

The benefit from a rule like this far outweighs the consequences o The state of NJ and the governor was especially committed to reducing the instance of drunk driving and a ruling such as this could bring a lot of good


There is something missing in the legislation, and when the court finds that to be true, it is the duty of the court to impose such a law for the benefit of society
 The dissent
 This kind of opposition will make things awkward for others
 Risky for individuals o What kind of insurance covers this
 It is difficult to assess someone else’s level of drunkenness particularly if you are drinking yourself
 Difficult to monitor or enforce something like this

This kind of decision should be left to the legislation to decide, not the courts o NEGLIGANCE ALWAYS REQUIRES A FACT BASED INQUIRY AND A TRIAL o Barrett v Southern Pacific Co
 Issue

Was the defendant negligent in their maintenance of a railroad turntable that existed on their property and is the plaintiff owed damages although he was a trespasser?
 Facts

A railroad turntable existed on the property close to the public

Defendant used the common “latch and slot” to keep the table from turning

Defendant knew children often played on the property

An 8 y.o., while playing on the machine, was injured, and his leg amputated as a result
 Holding:
 Defendant was negligence in their maintenance of the machinery
 They should have taken simple precautions to amend such an unnatural danger
 Reasoning
 This danger was foreseeable
 Children cannot be expected to fully understand the potential danger of their actions

Peters v. Bowman o Parties
 Plaintiff: Peter’s, the mother of drowned kid, appellant
 Defendant: Bowman, owner of property with pond where kid drowned, appellee o Procedural history
 Trial, jury ruled for defendant o Facts
 Bowman owned a lot with running water that emptied into a pond

 City of SanFran put up an embankment blocking the flow of water and creating a pond on Bowman’s property
 Defendant moved his residence and new children played on his property
 Plaintiff never told son not to go rafting in the pond
 11 year old drowned while playing in a pond o Issue
 Is the defendant liable for the child’s drowning? o Holding
 Bowman is not liable o Reasoning
 The pond is common, natural, and open
 Precedent has not allowed for drowning damages to be recovered
 Trying to make all natural things safe is oppressive and absurd to request o Notes
 This narrowed the decision in Barrett
 A trial was required because of possible negligence, and because court had to distinguish dangerous machinery from that which is natural

A decision by ones peers, particularly a decision that is not pleasing to the masses, might carry more weight than a decision coming down from a single judge
 Needed a retrial because a case was mentioned in the margins of the plaintiffs brief but it was overlooked by the judges

Class notes 5/28/19 o Sourcecs of authority in law
 Other case decisions
 Principle
 Legislation

Copfer v. Golden Court of Appeals CA, 1955 o Parties
 Plaintiff: Copfer, appellee, child injured while playing on a lumber haul machine
 Defendant: Golden, appellant, owner of lot with machinery o Procedural History
 Jury found for Copfer and Golden appealed o Facts
 Golden owned 2 lots upon which he stored machines, materials, and equipment for his work
 One of the pieces was a 2-wheeled tubular frame
 Golden knew children played there
 Girl got injured while playing on the tubular machine o Issue
 Is the tubular frame an attractive nuisance and is the defendant liable? o Holding

 A duty rested on Golden to protect the children from perils that could have been foreseen, judgement affirmed o Reasoning
 Anyone who maintains stuff that is dangerous to children has a duty to exercise reasonable care and protect said children from their naivite o Class notes
 This case relies entirely on a restatement because it covers statutes and case law
Sanchez v. East Contra Costa Irrigation Co.
205 Cal. 515, 271 P. 1060 (1928)
Parties
Plaintiff and appellee, Sanchez, fathered the boy who drowned. Defendant and appellant, East
Contra Costa Irrigation, owned and maintained the canal in which the child.
Procedural History
A trial court awarded $6,000 to the plaintiff in damages. The defendant appealed on the grounds of nonliability and J. Langdon wrote the current opinion.
Facts
The defendant owned and maintained many irrigation canals, one of which required a syphon.
The opening of the syphon was unguarded, and the defendant built homes nearby for the employees and their families. A 5-year-old fell into the canal with the syphon at the bottom and drowned. There were no signs warning people of the syphon and its danger.
Issue
Is the defendant liable for the 5-year-old’s death because they placed an artificial danger in the community without proper warning signs?
Holding
Judgement affirmed; defendant is liable.
Reasoning
The canal with a syphon at the bottom constitutes a trap, so the rule of nonliability does not apply in this case. The child only assumed the risk associated with the shallow canal; he did not assume the risk of the syphon.

Wilford v. Little California Court of Appeals 1956 o Parties
 Plaintiff: parents of child who drowned, Wilford, appellant
 Defendant: owner of private swimming pool and diving board, appellee,
Little o Procedural History
 Defendants demurred and court entered judgement of dismissal

 Plaintiffs appealed o Facts
 Little owned private swimming pool with a diving board
 Little knew children could see the board and pool
 Sides of the pool were slick
 Wilford and friends about 4 years old went to play on diving board
 Wilford’s parents did not know about pool
 Child fell or jumped off the diving board and drowned o Issue
 Is a pool with a diving board an attractive nuisance?
 Is Little liable for damages for death of Wilford’s son? o Holding
 A swimming pool and diving board are not an attractive nuisance o Reasoning
 The object must be artificial, uncommon, and dangerous
 Courts have ruled a body of water does not fit that description
 It is a danger to infants but not older children so it’s a question of parental care
 Knight v. Kaiser Supreme Court of CA 1957 o Parties
 Plaintiff: Knight, mother of child asphyxiated in sand, appellant
 Defendant: owner of property with sand pile, Kaiser, appellee o Procedural history
 Facts are undisputed-summary judgement issued in favor of Kaiser
 Knight appealed o Facts
 Kaiser owned a large pile of sand on his property
 There were no fences or safe guards around it
 Kaiser knew children played there
 10y.o. was playing in the sand pile when it collapsed on him and he died o Issue
 Is a sand pile an attractive nuisance which places liability on the owner of the pile? o Holding
 A sand pile duplicates the work of nature and has no new dangers so owner should not be liable o Reasoning
 Pools and piles of sand duplicate nature and are not uncommon
 General rule is to restrict and limit the attractive nuisance doctrine and only apply it when the facts come strictly and fully within the rule
 Conveyor belt would be different but it was not involved in the kids death o Dissent
 Traynor
 The duty of care here to trespassing children is not unreasonable

 Case satisfies standards of negligence
 There shouldn’t be rigid rules of law, cases should be decided based on their facts
 Not every sand pile resembles nature
 Risks between large and small piles are vastly different o Class notes
 Plaintiff amended 3 times
 They don’t really know what to do or what to put in their complaint
 Sources of negligence claims stem from CA civil code 1714 and past case law on negligence
 Saying sand piles are common is the court using its judicial notice
 This dissent spoke to the future because it encouraged a negligence standard for finding facts
 References the language in Peter’s 2 decision
 Mentions Fayler to support looking at circumstance over the imposition of rigid rules
 But this method also makes it difficult to know when youre breaking the rules

Reynolds v. Willson Supreme Court of CA 1958 o Parties
 Plaintiff: Reynolds, 2 year old who drowned in friendly neighbors half filled pool, appellee
 Defendant: Willson, owners of pool, appellants o Procedural history
 Trial court found for Reynolds in the amount of 50k
 Willson’s appealed o Facts
 Reynolds, 2y.o., partially drowned in Willsons pool in 1953
 Half a wall surrounds the pool
 The two families were neighborly and the Wilsons let the Reynolds use the pool with the implied condition that an adult be present when children used the pool
 At the end of 1952 the Wilsons partially drained their pool in an attempt to make it safer for their own kids
 Pool had enough dirt and algea to make it slippery for adults
 Nanny put Reynolds down for a nap at 330, at 345 she couldn’t find him
 4pm dad found son in pool face down
 Ended up alive put paralyzed with permanent brain and nervous system damage o Issue
 Is there sufficient evidence to support the verdict of liability towards o Holding
Willsons?

 Conditions were met to satisfy liability under the theory of section 339 and the pool constituted a trap
 Unnecessary to asses duty owed to Reynolds as an invitee. o Reasoning
 In an attempt to make the pool safer for their kids, Willsons maintained a trap in the form of the condition of their pool which made it more attractive to young kids
 A pool in its usual condition is not a nuisance
 Recovery should depend on the facts of each case o Dissent
 Should base decision on past case law not individual facts of each case otherwise you might hit a slippery slope
 Application of civil code 1714 depends on relationship of the parties
 Condition of the pool was common for that of water natural and artificial
 A trap has never been constituted by obvious conditions only concealed and hidden dangers
 Imposing liability is inconsistent with precedent
 Sometimes tragic accidents happen o Class notes
 This case ties itself closely to the law in an attempt to further the notion of judicial decisions made with integrity
 It went to trial because it was safer for the court to let facts decide the case because the decision based on the law was unclear

Garcia v. Soogian Supreme Court of CA 1959 o Parties
 Plaintiff: 12y.o. Garcia, was running on a lot and tried to jump over glass, appellee
 Defendant: Soogian, landowner, appellant o Procedural history
 Garcia won damages in trial court and Soogian appealed o Facts
 Garcia, playing hide and seek, tried to jump over a stack of glass panels that were uncovered, neatly, firmly stacked, and about 120 feet back from the road
 Soogian and neighbor regularly told kids to get off the lot o Issue
 Is the prior judgement supported by the evidence? o Holding
 No. The conditions on Soogian’s lot did not constitute an unreasonable risk to a kid of Garcia’s age. Ruling reversed o Reasoning
 Liability should be decided by facts of a case
 What is important is if the child could comprehend the dangers in full
 The commonness of the item shouldn’t matter that much

 Landowner only has to exercise care, not prevent every possibility of harm
 Reasonable to assume 12 year old knows the risk of glass o Dissent
 This dude doesn’t like the case by case approach
 Agrees with reversal but wants a ruling in favor of Soogians
 What a kid understands is a question of fact not a question of law o Class notes
 States section 339 of the restatement is law
 Disapproves Peters and Knight
 King v. Lennen Supreme Court of CA 1959 o Parties
 Plaintiff: King, 1 y.o., drowned, appellant
 Defendant: Lennen, owners of pool, appellee o Procedural history
 Lennen moved for demurrer, it was sustained
 King appealed o Facts
 Lennen owned a pool with farm animals around it and a half wall around it
 Children played there a lot and the depth was unclear
 Nothing in the pool was there to help someone get out
 Lennen’s daughter was babysitting King when he drowned o Issue
 Is there evidence to hold Lennen liable for death of King? o Holding
 All requirements in 339 are satisfied to hold Lennen accountable o Reasoning
 Boyd was too young to realize the danger of the pool even if it is common
 Therefore the pool is a dangerous condition in it of itself
 Cost of maintenance and safeguards is slight in comparison to cost of pool and risk involved o Dissent
 Should only follow the settled rules of case law o Class notes
 References Garcia heavily which says we have to look at what the kid in question understood about the danger in question, not places dangers in general categories
 Admits the decision is a departure from precedent

General Class Notes o Law vs. Fact
 Trial courts find facts
 Appellate courts determine law

o Sometimes the more specific statute in an applicable situation will be applied over a general restatement

o Barrett
 8y.o., turntable, found for injured kid
 Landowners can be liable even if the children are trespassers if the children could not reasonably foresee the danger of their actions (trap) o Peters
 11y.o., drowned in a pond that formed b/c of an embankment, found for land owner
 The owner of a thing that is dangerous and attractive to children is not always liable for an injury to the child tempted by the thing
 Whether the thing is common, natural, and easily rendered safe matters
 Eventually disapproved o Sanchez
 5y.o., drowned in a canal that had hidden syphon, found for plaintiff
 Cites faylor which holds owners of traps accountable for injuries caused by said trap
 Also states this is an exception to the general rule of nonliability o Copfer
 6y.o., fell off tubular frame and injured leg, found for injured kid
 It is for a trier of fact to say if circumstances of each case hold the owner of a dangerous thing accountable o Wilford
 4.5y.o., drowned in a pool with diving board, found for land owner
 A body of water, natural or artificial, is not, in it of itself, an attractive nuisance
 Court also narrowed the Sanchez ruling o Knight
 10y.o., asphyxiated in a pile of sand, found for land owner
 A large pile of sand is like a pool/pond and therefore not an attractive nuisance b/c it is natural and common
 Dissent
 Majority is wrong to impose sweeping rules and should instead look at the facts of the case to make their decisions
 Eventually the case is disapproved o Reynolds
 2y.o., drowned in a half drained, murky pool, found for kid
 The maintenance of a pool can constitute a trap and establish liability under the restatement of torts
 Recovery depends on the facts of each case
 Dissent

Sometimes tragic accidents happen


The nature of the water was not unnatural or uncommon for bodies of water o Garcia
 12y.o., cut ankle trying to jump over glass panels, found for landowner
 Cases must be decided based on circumstance and not rigid categories
 What matters is whether the child comprehends the danger around them or not, not the commonness of the thing
 Attempts to genuinely clarify past rulings
 Landowner just needs to exercise care for unreasonable risk
 Mentions a spirit of bravado-landowner not liable for children acting in that spirit
 If the children are of an age to appreciate the risk they may be without remedy (Copfer and Peters)
 First supreme court reversal in sequence o King
 1y.o., drowned in neighbors pool while owners daughter babysat him, found for drowned kid
 Reinforces Garcia
 Commonness cannot completely remove liability
 Whether a danger should have been known needs to be left to a trier of fact
 Supreme overruled


Filmore v. Metropolitan Life Insurance Co Ohio St. 1910 o Parties
 Plaintiff: Filmore, appellant, took out insurance on wife and killed her
 Defendant: Life insurance Co, appellee, issued life insurance plan o Proc History
 Filmore introduced demurrer, it was overruled
 Judgement entered to dismiss Filmore’s petition
 Circuit court affirmed o Facts
 Elmer took our life insurance policy on his wife and was convicted of murdering her
 Elmer tried to collect on life insurance and the company denied his claim on two grounds
 General denial

The fact that he murdered his wife o Issue
 Is the insurance company’s second defense legally sufficient grounds to o Holding deny Filmore’s claim?

 Yes. The beneficiary in an insurance policy cannot recover, where death of assured has been intentionally caused by his act o Reasoning
 References two cases
 Mutual life insurance v. Armstrong: wrong to recover for the death of someone you murder
 Schriener v High Court IL Forresters: relied upon by Filmore in error
 No recovery in action founded by intentional wrong
 There was no specific statute in place so court felt free to rule the way they did

Deem v. Millikin Ohio Cir. Ct 1892 o Parties
 Plaintiff: Deem, lenders of mortgage, appellee
 Defendant: Millikin, siblings of deceased, appellants o Proc history
 Lower court ruled Elmer inherited the property to the mortgages he took out were valid o Facts
 Caroline Sharkey, widow, died without a will
 Son was sole heir who got Caroline’s property
 Son hanged for murdering mother
 Siblings of Caroline contest validity of mortgages on grounds Elmer did not inherit the property o Issue
 Did Elmer inherit his mother’s estate? o Holding
 Yes if the terms used in the statute of the descents should receive their plain natural meaning o Reasoning
 Caroline died owning the lands in question and the statute says they go to her son
 It isn’t the role of the court to overrule legislature
 Because the statute did not prohibit it the court must allow it
 Statute can’t go beyond its text except to fulfill its job
 Riggs v. Palmer NY 1889 o Parties
 Plaintiff: daughters of deceased, Riggs
 Defendant: grandson of deceased, murdered deceased, Palmer o Facts
 Aug 13, 1880 Francis Palmer made will giving his daughters small legacies and remainder to his grandson
 Palmer lived with Elmer and knew about how he would benefit from the will

 At 16 Palmer poisoned his grandpa and tried to claim his inheritance
 Daughters sued grandson o Issue
 Can Palmer have his inheritance or can wills be amended after death and against legislation? o Holding
 Holds that Palmer shall not acquire property by crime and be rewarded for commission o Reasoning
 Purpose of statutes regulating wills is to allow final wishes to be carried out
 Keeping that purpose in view, if a donee murders the testator to push the will into effect, it could not be the intention of the deceased to let the murderer profit from this
 Why is it reasonable to say legislation favors a murderer
 Don’t be troubled by actual text of statutes o Dissent
 No precedent for this kind of case
 Bound by rules of law which prohibit tampering with a will after a testator dies
 Denying inheritance is imposing additional punishment which would enhance pains o Class notes
 Different statute in place but courts rules the intention of legislature in making this statute is different than language of it

Where did the court come up with the power to make this decision? o Legislature could amend or enact new statute if they are unhappy with courts ruling
 Court says they can look beyond the statute

Could have argued the statute of wills doesn’t apply here

Wadsworth v. Siek Ohio Misc. 1970 o Parties
 Plaintiff: Wadsworth, executor of deceased’s estate
 Defendant: Siek, beat deceased to death o Facts
 Rosaline made out her will to include her family in May
 In September she got married and he beat her to death-Siek was not listed in will
 He pled guilty to manslaughter for a lesser sentence o Issue
 Can sick claim half his dead wife’s estate? o Holding

 No right to regard Siek as a murderer. He is entitled to one half of his wife’s estate. o Reasoning
 Section 2105.19 of Ohio Revised Code
 No person found guilty of murder shall inherit estate of person they killed
 Siek was convicted of manslaughter which is less serious and lacks premeditation and malice
 There are ohio cases that hold the statute means the person must be guilty of murder
 If the legislature wanted to include manslaughter in the statute, they can/could have o Notes
 Statute legislates with comprehensive peculiarity-it’s specific
 Similar to deem in that court feels constrained by the statute

The specificity of the statute makes it more binding in a way
 Decision sends a message to the legislature saying hey there’s a loophole here that needs to be addressed
 Enactment force-legislature
 Gravitational force- the weight of authority
 Did not mention the statute of wills, just the slayer statute

Can courts sort of choose the statutes to govern their decisions?

Shrader v. Equitable Life Assurance Society Ohio St. 1985 o Parties
 Plaintiff: Shrader, husband of the deceased, primary insurance beneficiary, appellee
 Defendant: parents of deceased, appellant o Procedural history
 Insurance gave court the funds
 Trial court (in civil court) said Shrader killed his wife and he got nothing
 Court of appeals reversed the ruling o Facts
 Jean Shrader was strangled to death in a parking lot
 No one was ever arrested or charged for it
 She had 2 life insurance policies and Shrader was primary beneficiary, parents were secondary
 Shrader was strongly suspected of the crime
 Both Shrader and the parents sought proceeds o Issue
 Is RC 2105.19 applicable? Deals with prohibiting people from benefiting for their causing another’s death
 Will common law bar a beneficiary from proceeds when they cause death/harm to the insured
 Can the identity of a murderer be established in a civil proceeding?

o Holding
 Civil courts are the proper authority to determine the identity of someone alleged to be a murderer-check this o Reasoning
 Shrader cannot be presumed to be guilty and the statute says nothing about those alleged to have murdered the insured
 Concept that no one should profit from their own wrongdoing is a civil concept
Pay attention to ambiguous words in statutes.
Always start with the issue at hand.
Issue
Rule
Analysis
Conclusion
Do the cases interpret the statute broadly or narrowly?
Note similar facts in the cases
Acknowledge conflicting rules of law
Acknowledge obvious answer based on plain letter law of statute
More specific and more recent statutes are generally better