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28. Is the personal representative likely to prevail?
A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer's request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer's personal representative has sued the landowner.
A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, «No Hunting—No Trespassing,» hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived.
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A plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. To have assumed the risk, the plaintiff must have known of the risk and voluntarily assumed it. For a risk to be implied, the plaintiff must have known of it, which occurs when the average person would clearly appreciate it. Moreover, the plaintiff must voluntarily go ahead and face the risk.
D is correct. The photographer's representative is not likely to prevail because the barbed wire was apparent, and the photographer would have had to see it as he climbed the fence. The photographer then proceeded to get tangled in the obvious barbed wire to the extent that it caused him severe lacerations. The landowner properly made the use of force obvious to any trespassers, without any attempt to conceal it, and by seeing it and proceeding anyway, the photographer assumed the risk that he would be injured by knowingly entering into the sharp barbed wire, especially to such an extent. Moreover, the landowner did not «use force that will cause death or serious bodily harm» because, even in the event that the photographer did not see the barbed wire until he came upon it, simply touching it would deter an average person from deciding to proceed anyway. By battling with the barbed wire, the photographer was thus assuming the risk that he would certainly become injured.
A is incorrect. It is true that a landowner may not use deadly force to defend against mere intrusion by trespassers absent some risk to his safety. Nevertheless, even though the photographer died from his injuries, the barbed wire did not constitute the use of deadly force. Only because the photographer assumed the risk and allowed himself to become extensively entangled did he suffer such severe injuries that resulted in death.
B is incorrect. The landowner did, in fact, have a property interest in the land, which includes the deer. Regardless of her motive in protecting the land, the landowner had an interest and properly defended it by reasonable use of force.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. The photographer's representative is not likely to prevail, but not because the photographer was a trespasser. The landowner's refusal to permit others to enter her land was clear both before and after she denied the photographer's request to enter. Therefore, the photographer would have been a trespasser whether or not the landowner had specifically told him not to enter. Landowners do owe a duty to trespassers to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover (e.g., hidden traps and deadly force). The barbed wire was not hidden and did not amount to deadly force based on the actions of an average trespasser.