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  • David Foreman

Goldilocks and the Three Barristers - Part One

Once upon a time, Goldilocks wandered into a home in the forrest. She fell and was injured when she tried to sit in Baby Bear’s negligently maintained chair. Can she collect from Baby Bear for her injuries?

General principle: Trespassers have very little hope of receiving compensation if injured while trespassing, even if the property owner/tenant is negligent. Trespassers can’t collect if they slip on a wet floor. There are exceptions to this rule. Think Home Alone. The robbers, Harry and Marv, were injured by the booby traps left for them by little Kevin McAllister. As we will see, Pennsylvania law permits Joe Pesci to go after McCauley Culkin!

Before we get to whether any sane lawyer would represent burglars who intend to harm a child, let’s review the law on premises liability. It will help us determine whether we would want to represent Goldilocks, Hansel and Gretel, the Three Little Pigs, Santa Claus or Joe Pesci.

There are three basic categories of premises liability plaintiffs: Invitees, Licensees and Trespassers. The determination of the duty of a possessor of land toward a person entering the land depends on the entrant’s status. Updyke v. BP Oil Company, 717 A.2d 546, 548 (Pa. Super. 1998). Let’s start with the lowest duty.


The Restatement (Second) of Torts defines a trespasser as "a person who enters or remains upon land in the possession of another without the privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts § 329; See Cresswell v. End, 831 A.2d 673 (Pa. Super. 2003); Updyke v. BP Oil Company, supra.

A trespasser may recover only if the possessor of land engaged in wanton or willful negligence or misconduct. Rossino, et. al. v. R.C. Titler Construction, Inc., et. al., 553 Pa. 168, 718 A.2d 755 (1998), citing, Engle v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970).

Willful misconduct means that the actor desired to bring about the resultant harm, or was at least aware that it was substantially certain to ensue; this means that willful conduct requires actual prior knowledge of the trespasser's peril . . . . Wanton misconduct by contrast, means that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person's peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a period exists, for sufficient time beforehand, to give the actor a reasonable opportunity to take means to avoid the injured person's accident; the actor is wanton for recklessly disregarding the danger presented.

Ott v. Unclaimed Freight Company, 577 A.2d 894, 897 (Pa. Super. 1990); Graham v. Sky Haven Coal, Inc., 386 Pa. Super. 598, 563 A.2d 891, 895 (1989).

One might think that Joe Pesci is in a better position than Goldilocks since Kevin intended him harm. Baby Bear didn’t injure Goldilocks intentionally. So Goldilocks seems to have no shot at collecting from Baby Bear’s insurer.

Home Alone is an updated version of another children’s tale (tail?), The Three Little Pigs. Just like the robbers in Home Alone, the big bad wolf trespassed in order to do the occupant(s) harm. In both cases, the latter cleverly set a trap for the invader that caused grave bodily harm. Under the strict letter of the law, this should render the possessor liable to the trespasser. But, practically speaking, no one wants to represent robbers or predators.

Moreover, the homeowner’s insurance will cover neither of these claims. Insurance does not cover intentional harms, and Kevin intentionally hurt Harry and Marv. The Three Little Pigs lit the cauldron in the fireplace knowing that the wolf planned to enter the brick house via the chimney. Every insurance policy has language that excludes coverages for injuries that occur while the insured is committing a crime. We don’t want to encourage misconduct by allowing people to insure themselves against it. So there is no deep pocket. To quote another movie, SHOW ME THE MONEY!

Santa Claus, on the other hand, stands a better chance if he is injured during his journey down the chimney. Santa is not really a trespasser. He may even be an invitee since the kids left cookies for him, welcoming him to their home. And so the highest standard of care would apply, as we shall see.

As an aside, there are situations in which insurance will cover intentional misconduct. For example, a drunk driver acted intentionally by: 1. Getting drunk and then 2. Getting in the car and driving drunk. That’s a crime. It seems that auto insurance would not cover a claim if the drunk driver injured someone. Nevertheless, since the drunk driver presumably did not intentionally injure the other person, the insurer will defend and indemnify him. In other words, the insurer will pay an attorney to defend him and it will pay the verdict or settlement up to policy limits.

Here is how I assess the Home Alone litigation scenario:

Harry and Marv are burglars. No jury will like them or want to give them money. So that’s strike one. Kevin is a child and children are inherently sympathetic. No one particularly wants to sue a child. Strike two. Finally, there’s probably no pot of gold over the rainbow. There’s virtually no way to collect on a judgment against Kevin. Strike three. Harry and Marv are out the door.

What about Kevin‘s parents? Had the McAllisters supervised Kevin properly, they would not have allowed him to set all these traps for burglars. That would seem to be negligent supervision and insurance covers negligence. No one minds suing adults; adults are not inherently sympathetic. And it’s not hard to prove that Kevin’s parents were negligent since they left him HOME ALONE!! So if you like representing bad guys, maybe you pursue this claim, keeping in mind that Harry and Marv were trying to hurt Kevin, just like the Big Bad Wolf and the Piggies.

Getting back to Goldilocks, since Baby Bear did not intentionally injure her, it would seem that she has little hope of collecting for her damages. However, foreseeable trespassers may be entitled to greater protection. An “attractive nuisance” might subject the possessor of land to liability to a child trespasser.

Attractive Nuisance laws recognize that small children are not capable of fully appreciating danger and can be expected to trespass to get to something that is attractive to them. Examples include an unfenced swimming pool, trampolines. playgrounds, treehouses, dangerous animals, construction sites, an abandoned well, old cars, or heavy machinery. If it looks like it could be a fun place to play, consider it an attractive nuisance.

Because of their young age, children are naturally curious. If you create an artificial hazard on your property, you may be liable for injuries caused by the hazard. The possessor should foresee that a child might wander onto the property, attracted by the unfenced swimming pool.

Pennsylvania law recognizes that children are not as responsible for their behavior as adults. A presumption of non-negligence applies to children.

The application of this standard is clarified by the use of several presumptions delineating convenient points to aid in drawing the uncertain line between capacity to appreciate and guard against danger and incapacity: (1) minors under the age of seven years are conclusively presumed incapable of negligence; (2) minors between the ages of seven and fourteen years are presumed incapable of negligence, but the presumption is a rebuttable one that weakens as the fourteenth year is approached; (3) minors over the age of fourteen years are presumptively capable of negligence, with the burden placed on the minor to prove incapacity.

Dunn v. Teti, 421 A.2d 782 (Pa. Super. 1980).

A 12-year-old has a much weaker presumption of non-negligence than does a 8-year-old. Goldilocks stands a much better chance of collecting from the bears’ insurer if she is eight, and if the bears left their door unlocked. Perhaps there are treats on the front porch and Home Alone is playing on the VCR, luring her inside. That’s an attractive nuisance few children of tender years can resist.

You can’t really blame the family for taking a stroll in the woods. That’s what bears do. But they should have at least locked the door. It’s not as egregious as Hansel and Gretel who happened upon a house made of gingerbread, cake, and candy, the quintessential attractive nuisance. The witch intentionally lured Hansel and Gretel inside in order to fatten them before cannibalizing them. So a wrongful death lawsuit against the witch by the parents would not be hindered even if H and G trespassed into the house. Hansel and Gretel’s parents would defeat the witch’s motion for summary judgment. But again the problem is collecting since the witch’s insurer won’t cover her intentional/criminal act.

If Hansel and Gretel managed to escape the witch’s clutches with only minor injuries, any lawsuit would have to be brought by their parent(s) or other legal guardian(s).

Children cannot file lawsuits in their own names. Children, however, can be sued directly. So Goldilocks’ parents could sue Baby Bear directly, along with the entire Bear Clan.

That’s the trespasser situation. What about the next level up, licensees?

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