Argue against summary judgment for a landowner sued by a trespassing child. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Tomas Reyes, Partner. Re: Bell v. Redwood Builders. We represent Lucas Bell, age 8, who was hurt while climbing on a pile of pipe at a construction site. The defendant, Redwood Builders, has moved for summary judgment on the ground that Lucas was a trespasser. Please draft the Argument section of our opposition, arguing that there are disputed issues of fact under the attractive nuisance doctrine and that the case must go to the jury. Use only the Library and address the defendant's argument that the site was fenced.
File
Investigator's report
Redwood was building a 40-unit complex next to Lucas's neighborhood. The site was surrounded on three sides by a chain-link fence. On the fourth side, next to a public path children use to reach a park, the fence was down for about six weeks. Redwood's site supervisor, Nora Lund, testified that she saw children on the site about once a week and told the crew to fix the fence, but it was not fixed. A stack of concrete pipes, each three feet wide, sat uncovered near the gap without any barrier. Lucas climbed on the pipes with two friends. A pipe rolled and crushed his leg. Lucas says he thought the pipes were 'like a tunnel' and did not think they could move.
Redwood's statement of undisputed facts (excerpt)
The site was fenced. Lucas entered without permission. Warning signs reading 'Keep Out' were posted at the front gate. Lucas cannot read at a third-grade level.
Library
Civil Code, section 8-410 (Franklin)
A possessor of land is subject to liability for physical harm to children trespassing on the land caused by an artificial condition if (a) the possessor knows or has reason to know that children are likely to trespass; (b) the possessor knows or has reason to know that the condition involves an unreasonable risk of death or serious harm to children; (c) the children, because of their youth, do not discover the condition or realize the risk; (d) the burden of eliminating the danger is slight compared to the risk; and (e) the possessor fails to use reasonable care to eliminate the danger or protect the children.
A ten-year-old drowned in a quarry pond. The court held for the landowner because the pond was a common feature children generally understand to be dangerous, and older children can appreciate the risk of water. The court said a condition must be one that children, because of their youth, do not appreciate, and that warnings do not defeat the claim if the child is too young to understand them. Whether a child appreciated a risk is ordinarily a question for the jury.
A seven-year-old was hurt when a stack of lumber at a home construction site fell as he climbed it. The landowner had a fence with a gap the workers knew about. Held: the case went to the jury. The court said that a landowner who knows of a gap and of children entering has reason to know children are likely to trespass; that a stack of unstable material can present an unreasonable risk that children would not appreciate; and that the cost of repairing a fence or blocking a stack is slight. The presence of a fence does not defeat a claim when the fence is broken and the possessor knows it.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Uses complete-sentence headings and argues genuine issues of material fact
Applies each element of section 8-410 to the facts in the file
Argues the supervisor's testimony shows knowledge that children were likely to trespass
Argues the loose pipes present an unreasonable risk of serious harm and that Lucas thought they were a tunnel
Distinguishes Tobin because pipes are not a familiar danger like water and because appreciation of risk is a jury question
Argues the burden of fixing the fence or blocking the pipes was slight
Uses Greer to answer the argument that the site was fenced and posted