回複：回複：回複：I heard if someone got injured in your house,

You are right. Landowner's liability is one branch under negligence, besides other negligence such as ordinary person negligence, child negligence, and professional negligence. It is really the standard of care to be used. So, technically it is still negligence. To me, it is more overlapped with strict liability, though. Some dangers are so obvious to the family members but not so to outsiders. One case was about a guy who had a swimming pool. It was in his backyard so that he did not think it was too dangerous for other people. The pool had not been used for long time and it was full of junks and even a frog. Of course he did not think a warning sign would be necessary. Unfortunately his fence was broken and a kid went in there to see the frog and got drowned. The kid's mother went in to rescue and also drowned. The house owner was found liable because he knew there were kids in the neighborhood and he should use better precaution. A certain danger may be so obvious to adults but may not be so to kids. It is really up to the court how to interpret the rule. Most courts will be bound by stare decisis so that if there was any similar case decided in the same jurisdiction before, the court will bring about similar verdict. I often go to friends' house to attend parties and found kids just running around. If they got hurt, chances are you as the owner will be liable. At such moments a discipline action might be necessary.


I am not familiar with the business practice rule. Is it a statutory rule? On its face, it looks similar to landowner's rule that landowners have to take care their invitees. Not sure about the burden of proof. It is always the case that the plaintiff has to prove EVERY element of the offense by preponderance of evidence. The only time the defendant needs to prove by preponderance is when he raises defense. There are generally two affirmtive defenses available, contributory negligence (modern trend is to use comparative negligence), and assumption of risk. In comparative negligence defense the defendant essentially has to prove elements of negligence by the plaintiff. In assumption of risk, the defendant has to prove (1) the plaintiff knows the risk, (2) he understands the risk, and (3) he still voluntarily exposed himself into the risk. Which, does not seem to fit into the business practice rule. Some jurisdictions have their own statutory affirmtive defenses and they can ask the defendant to prove whatever they want to. In common law, plaintiff always has the burden of proof. This is even so in criminal cases. If the defense is on an element of the crime, the defendant does not even have to prove anything. All he needs to do is to raise a reasonable doubt.

所有跟帖： 

• business practice rule -68106- ♀ (1296 bytes) () 12/08/2005 postreply 10:43:31

• Sounds like a good rule -66196- ♀ (1628 bytes) () 12/08/2005 postreply 13:30:30