In Praise of Moral Judgment: The Restatement (Third) of Torts and Flagrant 'Bad Guy' Trespassers

Abstract

In this Article, Professor Cupp argues that the Restatement (Third) of Torts’s creativity in addressing duty toward intentional, morally culpable trespassers is both appropriate and helpful for at least two reasons. First, jurisdictions’ approaches to assessing potential liability for injuries to intentional and morally culpable trespassers are untidy and divided. Thus, seeking to articulate a clear dominant rule would be problematic. Second, this unique category of tort claims has a highly disproportionate impact on public acceptance of the civil justice system. How these cases are adjudicated influences much more than the limited number of cases involving tort lawsuits by intentional, morally culpable trespassers. Because of the public’s perception of this subject of tort claims as emblematic of perceived problems with the broader civil justice system, this is an area in which thoughtful leadership by the ALI is particularly important.

Professor Cupp then examines two torts cases involving injuries to trespassers that were heavily influential on the development of the Restatement (Third) of Torts's position on this issue. The first is the 1971 Iowa case of Katko v. Briney. The second is the mid-1980s California case of Bodine v. Enterprise High School, which prompted changes to the California Civil Code that effectively eliminated tort liability for land possessors when a criminal trespassers are injured on their property. He concludes by exploring the impact of the use of specific language, such as the word "flagrant," in the Restatement (Third) of Torts when describing criminal trespassers.

Keywords: tort, Restatement, trespasser, landowner, injury, liability, claim, ALI, flagrant