Tresspassing

[jcsct5]

Soc-

Today we had a man walk into our back yard while our pool company was pouring some concrete. He tried to walk along the edge of our pool, presumably to avoid stepping in the wet concrete. He ended up falling into the empty pool (about a 10-15 foot drop) and caught himself on some rebar and got scratched up pretty bad.  There was some blood but we don't know the extent of his injuries.

To our knowledge he didn't break anything nor did he hit his head. My husband offered to call an ambulance for him, offered him some ice and he said he was okay but would need to go through our house to get back to his truck. My husband walked him through the house and watched him drive away.

After the fact my husband asked the concrete company if the man was with them, and they didn't know who he was. Then he asked the pool company if they knew who he was, and they didn't.

We expect that we will likely be served with a lawsuit from this guy seeing as how sue happy people are these days. Seeing as he had no buisness being on our property I was hoping for some thoughts on how to prevent him from successfully suing us.

1) Could we counter sue for tresspassing and undue emotional stress?

2) What are your thoughts?

[socrateaser]

This is probably the longest post I've ever made. I have too much time on my hands.

>1) Could we counter sue for tresspassing and undue emotional
>stress?

Tresspass is the intentional entry onto the land of another, without consent or legal privlege. Here, the man apparently entered your property intentionally, but for no known reason, so while he appears to have had no consent to enter, it's impossible to assess whether or not he may have been legally privileged (e.g., building inspector, assessor, electric company worker, etc.).

On balance this is a trespass, but your damages are nominal (i.e., non-existent), so it will be of no use to protect your interests.

Infliction of emotional distress requires an extreme and outrageous act intended to inflict (or negligently causing) extreme mental distress.

Negligent IED requires actual or threatened impact to a plaintiff (or mishandling corpse, misdiagnosing illness, incorrect notice of death of a loved one), and nothing like anything close to these things appears in your facts. As for Intentional IED, there are no facts suggesting that this man intended to cause you distress, thus there is no cause of action on this legal theory.

>
>2) What are your thoughts?

The man's only reasonable claim is for negligence. Negligence requires that defendant have a duty to another, that defendant breaches the duty, that the breach is the actual and proximate cause of plaintiff's injury, and that plaintiff sustains damages.

Duty

General Duty

A person has a duty to avoid imposing a reasonably foreseeable risk of injury on others. However, no affirmative duty to aid a person in need exists, absent some special relationship between the parties.

Here, the facts suggest that the man or his purpose in being in your yard was entirely unknown to you. However, if it is reasonably forseeable that someone would come onto your property and walk around the pool, thereby incurring injury, then you could be held to have violated the general duty, if you did not take any precautions to warn such persons, because such persons are in the "zone of danger" where an injury would be likely.

On the other hand, if the contractor were digging and a piece of rebar was inadvertantly flung into the air, only to sever an electrical wire, and someone three blocks away was injured when their elevator failed to operate and they were terrified from being enclosed for several hours, that would be outside the zone, and no duty would attach.

On balance, depending on how difficult it is to come onto your property and get near the pool, you may have breached the duty.

Special Duty

In a majority of jurisdictions landowner has a special duty to investigate and make the premises safe for business invitees, to warn and make safe for social invitees of known dangers, to warn known trespassers of known dangers, but no special duty attaches where the trespasser is unknown.

Here, your facts suggest that the man was simply trespassing, for an unknown reason. If so, then you have no duty, and cannot be held negligent. However, if the man was a sub contractor or a building inspector or tax assessor, who has a legal privilege or was invited to the premises, then depending on what sort of warnings and safety precautions you or the pool contractor took to prevent injury, you could be found to have breached the special duty.

In a minority of jurisdictions, landowners are held to the general duty, and the special rules just described are no longer applied. In such a case you would be in breach only if the man had been invited or had a legal right to be on the premises and you did not take reasonable care to prevent an injury such as the one which occured.

Vicarious Liability

An employer or contractor may be held liable for the acts of his employees/subcontractors, done within the scope of employment, or where a duty is so important as to be nondelegable.

Here, if the contractor did not take reasonable steps to warn people of potential construction dangers, it is very likely that you could be held vicariously liable, even though you did nothing personally wrong. Public policy favors holding every possible person liable for another's injuries, once there is a duty established, on the theory, that the plaintiff deserves a recovery from whomever of the tortfeasors is reasonably likely to be able to pay. On balance, I'd say that the duty to warn is nondelegable, and you will be held vicariously liable.

Breach

Breach occurs in three ways: (1) where the risk of harm to plaintiff outweighs the social utility of defendant's actions; (2) where a safety statute exists and your acted in violation of the statute; (3) where a person has exclusive control over a thing, and the injury caused does not ordinarily occur except due to negligence, and the plaintiff is not a contributor to his/her injury, then this could also cause a breach.

For #1, we don't know why the man was there, but if there was some social utility in his actions, due to his scope of employment, then it's possible that you could be in breach. For #2, I don't know what safety statute might apply, but there are loads of building codes that could create a duty to take reasonable precautions towards uninvited trespassers -- it's a question of local law. For #3, we are once again, left wondering what this man's purpose on the property was, and until we know, it's very difficult to assess whether he was a contributing cause.

So, it's possible that you could be in breach, but just how, is speculation.

Actual Cause

Actual cause occurs where "but for" defendant's acts, plaintiff would not have been injured, or where defendant is a "substantial factor" in plaintiff's injury. Here, assuming that you have a duty and are in breach, then the pool construction is the cause of the injury, and you are the cause of the pool construction, thus you are at a minimum substantially involved in causing the injury.

Proximate Cause

Proximate cause occurs where it is reasonably foreseeable that the defendant's acts would cause plaintiff's injuries. Here, if you failed to warn or make it difficult for someone to enter your property and injure themselves, this is reasonably foreseeable, as lots of people enjoy getting a close up look at new construction. Thus, you are the proximate cause.

Damages

Damages must be against property or person -- pure economic damages are generally not recoverable. Here, the man fell into the pool and was injured, so he has a personal injury and is entitled to damages.

General damages are avalble to make a person whole from the injury cause. Here, if the man suffers pain due to the injury, he is entitled to compensation.

Special damages must be a peculiar consequence of the injury and must be specially plead. Here, if the man can't work, then he's entitled to recover for this. If he needs medical rehab, he's entitled to that.

Punitive Damages, are only available where action is malicious or willful. You didn't set a trap for the man to fall in the pool, so no punitive damages are available.

Defenses

This is the part you've been waiting for. There are three defenses to negligence (1) Contributory Negligence; (2) Comparative negligence; (3) Assumption of risk. Also, there is contribution/indemnity, which is not a defense, but an offensive means of spreading the cost of a judgment.

Contributory negligence exists in a minority of jurisdictions, and states that where a plaintiff contributes to the cause of his/her own injury, plaintiff is not liable. If you're in one of these jurisdictions, then your defense is to show that the numbskull had no business on the property and only a moron would have walked where he did. To this end, I would be taking a LOT of PHOTOS of the location where the injury took place and the condition of the land, and of course, the BIG RED WARNING SIGNS THAT WERE ALWAYS THERE TELLING PEOPLE TO BE CAREFUL.

You remember those warning signs, don't cha? I knew that you did. LOL! Get lots of photos of them.

Comparative negligence exists in the majority of jurisdictions, and states that a defendant's proportion of negligence will be offset against the plaintiffs. In a "partial" jurisdiction, if a plaintiff is at least 50% negligent, then the suit is barred. In a "pure" jurisdiction, any amount of negligence after the offset is recoverable by the plaintiff.

Assumption of risk, exists where a person understands and contemplates a risk in advance and chooses to encounter the danger. Here, it's diffiduclt to assess the man's understanding and/or contemplation of the risk of wandering around the pool, because we don't know what he was doing there or anything about him.

So, this is a dead end for now.

Contribution/Indemnity

Where more than one party is negligent, the court can require that party contribute in proportion to their respective negligence, to the plaintiff's judgment. Or in cases where the  where a party is vicariously liable for the negligence of another, that party may be required to indemnify the defendant for the entire judgment.

Here, if you and the contractor were found to both have contributed to the man's injury, then you could both be ordered to contribute to the judgment. And, if the court were to find that you as landowner are responsible for the contractor's actions on your land, especially where the contractor doesn't have insurance or is working under the table, but you have homeowner's insurance or equity in your home, then it's quite possible that you could be forced to indemnify the contractor.

This is why no one should let a contractor do any work without making certain that the contractor has liability insurance. Because, without that, there's a real good possibility that the landowner will end up holding the bag if someone's injured on the job.

Now then, I think that about covers Negligence 101. I know you weren't looking for a complete run down of the legal theory, but, I felt like testing myself, so I did it.

In summary, you need to show that you did a real good job warning off trespassers, take loads of photos, and then determine whether or not this person had any business on your property. If not, you're in a much better position, then if so.

Best check on the status of your own homeowner's liability insurance, too.

Good luck