Share the Risk — Share the Land

Today’s blog post is more personal than the rest and not as legal in scope.  I am going to try and make sure I’m writing to an audience that is human in nature and not write like it’s some sort of legal exercise. 

The reason I write today is to talk about everyday life and the risk of falling.

We had a huge ice storm yesterday here in northern Indiana — the kind that covers your car, the sidewalks and even the screens of the windows of my house.  It was a beautiful expression of the sheer force of Mother Nature.  I could tell from the inside where I sat, next to my electric fireplace, that stepping outside was going to be treacherous for anybody.  I understood the risk involved.  Yet, I looked outside and saw dozens of cars go by as people scurried to their jobs or to do chores.

And I thought about the fallacious defense that attorneys for landowners cite over and over again — that the plaintiff (the slip and fall victim) should have realized the danger or did realize the danger and chose to assume that risk by traveling to his or her job or to do chores or whatever.  Many juries buy that defense.  It’s especially easy when seated in a courthouse — nice and warm — where the sidewalks and grounds are taken care of by maintenance man paid by our tax dollars.  (You’d be hard-pressed to find grounds that look more beautiful on a consistent basis than courthouses and their surrounding areas — rows of manicured flowers and sidewalks as clean and dry as freshly starched linens).

Do any of us really have a choice to avoid snow and ice when we must work to survive?  Or go to a hospital or doctor’s office?  Or drop our children off at school?  Or walk outside the parking garage?  Or walk outside the Walmart where we must pick up health-necessary prescriptions for ourselves and our family?

Now, I’m not suggesting that every landowner is the insurer of everyone’s safety who comes onto the land.  But, what I am saying is that the defense of “incurred risk” or “assumption of the risk” that’s implicitly codified in the Restatement, 2d of Torts, Sec. 343 and Sec. 343A (Liability of Landowners) should not apply in every situation where a person is injured for a fall upon ice or snow.

Section 343A – Known or Obvious Dangers. (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

Sometimes, we have little choice in the choices we make.  We can’t avoid our familial responsibilities.  We shouldn’t avoid our health responsibilities.  So, to blanket all of our ventures on bad weather days with one Restatement section isn’t fair under all circumstances.  A good defense lawyer would argue that the purpose of our venture across dangerous snow and icy parking lots and sidewalks can be explained into any case because the jury will allocate fault and include an evaluation of that purpose within such a calculation. Or that Sec. 343A – Known or Obvious Dangers, already sets a standard for “entitlement” to use the property.

But, I argue that merely hearing about the defenses of “known or obvious dangers” or “assumption of the risk” is enough to lose some cases and receive lower-than-fair results on others.  Sometimes, the question can hurt our case as much as the answer.

The risk should shared by invitees and possessor or the land alike under certain situations and the defense (or legal instruction) should be capable of not being tendered, if certain criteria are met.

I believe it is time for a new Restatement — a more equitable version where the portion of “assumption of the risk” (the old-school term) could be excluded in cases where the plaintiff meets the burden of showing the venture onto the snowy or icy property was worthwhile — selfless or to promote the well-being of himself or his family.

Radical, I know.

But these are radical times.