Duty of Care?

[Florid-aise]

What is the name of your state? Florida

FACTS:

Where a land owner, outside of the city limits, owning landlocked land encompassed and completely surrounded by other lands. The surrounding lands being the ownership of one single owner. Where access to the landlocked lands has been in constant, open and notorious use for over 50 years. Where in Florida, an easement can be created in one of three ways. 1), by common law; 2), by statutory construction; and/or 3), by prescription.

LAW:

"The landlocked landowner 'may use and maintain an easement...over and upon the lands which lie between said shut-off or hemmed-in lands and such public or private road by means of the nearest practicable route.' Moreover, 'the use thereof...shall not constitute a trespass..'" Sapp v. General Development Corporation, 472 So. 2d 544 (Fla. 2nd DCA 1985).

"As we interpret section 704.04, a servient owner cannot arbitrarily block the use of a statutory way of necessity. He can, of course, register an objection to the further uncompensated use of the way." Sapp, Id.

"Hence, section 704.01(2) serves the legitimate public purpose of allowing access to landlocked property so that it may be transformed from useless and unproductive land into valuable and productive property that provides a residence to the owner or produces valuable raw materials such as timber or agricultural products. Moreover, turning fallow land into productive property promotes development and, as courts in other jurisdictions have observed, increase tax revenues. It is beyond any doubt that there is a vital public purpose served in granting access to individual property owners to the road and highway system of the county or state so that the property may be utilized and developed as a resource for the common good, whether residential, agricultural or otherwise. Failing to grant access to landlocked property that the owner needs or desires to use for the purposes stated in the statute may leave the landlocked owner at the mercy of the adjoining landowners who will then have the final say whether access will be granted. Unless these adjoining landowners are fair-minded individuals who will not request exorbitant compensation or simply deny access over their property, the property may be condemed to being forever landlocked and useless. This would be very bad public policy because it would do nothing to promote any beneficial public purpose and it is just what the Legislature intended to prevent when it enacted section 704.01(2).". Cirelli v. McDonald, (Fla. 5th DCA 2004) 29 Fla. L. Weekly D2350, (Opinion issued October 18, 2004). (Footnote ommitted).

Then, just three days later, the Florida Supreme Court issued this opinion;

Blanton v. City of Pinellas Park, 2004 W L 2359991 (Fla.), (Opinion issued October 21, 2004); which says, "[a] common law way of necessity is an easement from its inception.". Id. And then again further, "[a] statutory way of necessity is not a 'hidden' interest in land." Id.

QUESTION:

What is the "reasonable person duty of care" of a servient easement owner to a dominant easement owner, to notify the dominant owner of a known or impending physical hazard or danger, where the duty of care is subject to these clasifications?

1. Licensee

2. Invitee

3. Trespasser.

 

[seniorjudge]

I don't understand what the law and facts you quote have anything to do with a reasonable person duty of care to the three classifications. (BTW, these three classifications have disappeared in a lot of jurisdictions. Are they still valid in Florida?)

You begin talking about landlocked real estate and how an easement is created therefor, then you jump to a tort question.

Enlighten me. I do not understand the question.

 

[Florid-aise]

I don't understand what the law and facts you quote have anything to do with a reasonable person duty of care to the three classifications.

What we are wanting to explore here, is the area of law that is "inextricably intertwined" with its various counterparts. Civil...criminal...tort.

(BTW, these three classifications have disappeared in a lot of jurisdictions. Are they still valid in Florida?).

Each of these three still exist in Florida law, yes. (Although there is a leaning to dispense with and/or consolidate the licensee/invitee category; there exists now the "Uninvited Licensee" category).

You begin talking about landlocked real estate and how an easement is created therefor, then you jump to a tort question.

Yes, thank you, that is precisely the question posed. We have a tortfeasor objecting to and denying the dominant owner access to his landlocked land, violently.

Enlighten me. I do not understand the question.

Enlightened sufficient enough to this point? All applications of the law are presently on the table. Discussion?

 

[seniorjudge]

We have a tortfeasor objecting to and denying the dominant owner access to his landlocked land, violently.

I would say to the tortfeasor, "Don't beat up the dominant owner!"

This question has nothing to do with real estate law; you obviously cannot do anything to a trespasser (or whatever you want to call it in Florida) that you could not do to someone else who just happened to be passing you on the street...unless the law in Florida is different than anywhere else I know of...a distinct possibility.

 

[Florid-aise]

I would say to the tortfeasor, "Don't beat up the dominant owner!".

An interesting observation on your part, in which total agreement here is proffered.

This question has nothing to do with real estate law;

This would be where we would tend to agreeably disagree with you; for several reasons. Again, this multi-part, multi-faceted, complicated issue pertains to EACH of the several applications of law, civil included. Inextriacably intertwined with its counterparts, thus making it so. Civil law encompasses real estate, easements (and the corresponding dispute resolution, and/or creation/establishment thereof) are products of real estate, thus civil law. Tort, also civil law, and the intentional torts found compensable by damages, relating to real estate, are also available. Then, perhaps based more upon simply convienience, there is the highly preferred practice of not placing multiple posts in multiple areas of this forum, regarding the same issue. Hence, it is placed here.

..you obviously cannot do anything to a trespasser (or whatever you want to call it in Florida) that you could not do to someone else who just happened to be passing you on the street...

The precise position being taken here.

...unless the law in Florida is different than anywhere else I know of...a distinct possibility.

Florida, as hopefully is obvious, takes a serious view of landlocked owner's accessabliity; without having to live in fear of physical attack. The courthouse doors being so readily and eager to swing wide open to resolve such disputes.

Where the new considerations arise, is that a dominant owner is not, cannot, has not, or will not fit into either of the three categories. Whether he did or not, each of the common law defenses available in law, would be available to him.

 

[seniorjudge]

I have never seen a reported case where the status of the victim of an assault mattered. The victim is either assaulted or not assaulted. Whether the victim is a trespasser, licensee, tenant, whatever, is totally irrelevant in a criminal case, but might be of some passing interest in a civil case.

In other words, the victim being a trespasser is certainly not a defense to a criminal charge. Also, unless things have changed in the common law since the 12th century, you may not intentionally harm anyone who comes on your land, trespasser or not.

So, to answer your original question: "What is the 'reasonable person duty of care' of a servient easement owner to a dominant easement owner, to notify the dominant owner of a known or impending physical hazard or danger, where the duty of care is subject to these clasifications?", the answer is, "It doesn't matter what classification the victim is in."

 

[seniorjudge]

"[T]he Supreme Court of Missouri's long standing rule [is] that possessors of land do not owe a duty to adult trespassers to maintain their land in any particular condition for the benefit of such trespassers."

Eric Humphrey, Plaintiff/Respondent v. Charles Glenn and Dale Glenn, d/b/a C & D Glenn Farms, Defendants/Appellants

http://www.courts.mo.gov/courts/pub...452b?OpenDocument&Highlight=0,trespasser,duty

This case is an interesting discussion on standard of care under Restatement rule and under Missouri rule.

 

[Florid-aise]

I have never seen a reported case where the status of the victim of an assault mattered. The victim is either assaulted or not assaulted.

It appears there may soon be one (perhaps even the first one) as this case develops. Based on the facts, twisted as though they may be, constitute a series of errors, multiplied and compounded by every actor involved. The dominant owner, having a well-above-normal understanding and comprehension of his legal rights and duties, and possesing advanced learning and knowledge of his legal position, and being highly educated to the relevance of his dominant ownership position, had the presence of mind at the time officers arrived on the scene, to directly cite to the precise statutes governing and controlling the issue. Which, contrary to the law itself, directly cited at the scene, the officers acted opposite to.

Whether the victim is a trespasser, licensee, tenant, whatever, is totally irrelevant in a criminal case, but might be of some passing interest in a civil case.

This case presents some unique "impossibilities", conceding the salient point you make, that have never been broached in any criminal court proceeding that is discernable in any jurisdiction that can be located.

In other words, the victim being a trespasser is certainly not a defense to a criminal charge. Also, unless things have changed in the common law since the 12th century,

Common law, long ago provided for self-defense of both, your physical person, and of real property. Longer ago still, where the Writ of Right even provided for a Wager of Battel. A duel to the death, to settle real estate disputes. No one here, most especially the dominant owner, is prepared to defend his honor to the death. This case however, presents rare, if not singularly distinct facts and factors, approaching manifest injustice, already. Florida standard jury instructions in criminal proceedings, include a "defense of person", and a "defense of property".

...you may not intentionally harm anyone who comes on your land, trespasser or not.

Where the enigma arises in this arena, is between two "owners", rather than between strangers, or between familiar persons; one, as the "agressor"; also being an "owner". And as the facts are such, one of the owners is difinitive, while the remaining "owner" is dubious at best.

So, to answer your original question: "What is the 'reasonable person duty of care' of a servient easement owner to a dominant easement owner, to notify the dominant owner of a known or impending physical hazard or danger, where the duty of care is subject to these clasifications?", the answer is, "It doesn't matter what classification the victim is in."

This is where "the line in the sand" will be drawn in the criminal proceedings and at trial.

 

[seniorjudge]

Actually, I should point out that there are two considerations here:

The condition of the land (you can't build traps on your land);

and

The actions of one person (e.g., servient owner) against another (e.g., trespasser).

The second consideration (I still maintain) involves only criminal law and tort law.

Can you imagine this defense (in either a civil or criminal trial)?: "Your honor, I shot him because he was a trespasser. Therefore, I am not liable/not guilty."

But...there are a lot of lawyers who can make such arguments with straight faces.

 

[Florid-aise]

Actually, I should point out that there are two considerations here:

The condition of the land (you can't build traps on your land);

There can be no higher agreement with this point. Correct.

and

The actions of one person (e.g., servient owner) against another (e.g., trespasser).

In tort, the servient actions will play a large roll; in civil application, even moreso; in criminal, higher still.

The second consideration (I still maintain) involves only criminal law and tort law.

Where in Florida, speaking only to denying access to landlocked land in its civil (non-tort) application, provides monetary damages and attorney fee award, as remedy for unreasonable interference with, and/or unreasonable refusal of access, to the dominant owner's passage over servient land, whether such an easement is recorded or not.

Can you imagine this defense (in either a civil or criminal trial)?: "Your honor, I shot him because he was a trespasser. Therefore, I am not liable/not guilty."

The straight face you speak of below...is the face of the prosecutor today. An impossibility in existence. Utilizing your very description, in defense of its prosecution. The State's case, rather than the defendant's.

But...there are a lot of lawyers who can make such arguments with straight faces.

The straight face as you are describing, has made such argument. The face of a farce.