By: Richard L. Cupp, Jr.

The Restatement (Third) of Torts is innovative in its approach to negligence liability for land possessors in cases involving intentional trespassers, and that is a good thing.  Excessive creativity in a Restatement formulation would not be helpful.  If a dominant jurisdictional position on an issue exists and it makes sense, the Restatements are often most useful to judges and lawyers when they simply restate that dominant position as clearly as possible.

Of course, a Restatement cannot credibly propose that courts adopt a formal duty limitation for a category of plaintiffs termed “bad guy” trespassers. However, I propose that the moral sentiment reflected in this loose and informal language is more or less what the courts seem to be getting at in these kinds of trespasser cases

Of course, sometimes case law is muddled, and articulating a clear dominant position is not possible.  In these situations, adopting the “best” approach in the eyes of the American Law Institute (“ALI”) may help courts to move forward.  The ALI standard of allowing Restatements to reflect the law “as it presently stands or might plausibly be stated by a court” permits some degree of flexibility in drafting formulations.[1]Overusing this flexibility would limit the Restatements’ usefulness over time as authoritative standards.

The difficulty, of course, is in determining how much flexibility is too much. The Restatement (Third) of Torts’s creativity in addressing duty toward intentional, morally culpable trespassers is not over the line—it 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.[2]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.

The somewhat creative standard set forth in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm section 52 is that land possessors do not owe any duty to “flagrant” trespassers other than the duty to refrain from intentionally, willfully, or wantonly inflicting physical harm, and to exercise reasonable care if the flagrant trespassers reasonably appear to be imperiled and helpless or unable to protect themselves.[3] The Reporters’ Note to section 52 seems to acknowledge that actual lawsuits involving flagrant trespassers seeking to collect tort damages from land possessors are probably rare.[4] However, despite the probable rarity of such lawsuits, they have played a leading role in inflaming public perceptions of an out-of-control tort system.

Few tort scenarios seem to arouse more public outrage than the prospect of an intentional and morally culpable trespasser—for example, a burglar—being injured during his trespass and suing the property’s possessor for damages sustained during this trespass.  At least two cases involving this sort of situation have received particular attention.  The 1971 case of Katko v. Briney[5] has earned a home in several tort law casebooks.[6] In Briney, the owners of an unoccupied Iowa farmhouse became frustrated over repeated break-ins at the farmhouse, and set up a spring loaded shotgun aimed at the door of one of the bedrooms.[7] The plaintiff burglarized the property and was seriously injured when he entered the bedroom, causing the gun to discharge.[8] The plaintiff successfully sued the property owners in tort (probably for battery)[9] and, in pursuit of collecting on his judgment, eventually joined in a lawsuit seeking to claim an interest in the title to the very property in which he had trespassed.[10] Briney involved an intentional tort rather than negligence and was misreported as involving an inhabited home (which would raise significant self-defense issues that were not present in the actual lawsuit), but nevertheless generated media attention that created a public outcry against the case.  In the wake of this outcry, many states enacted or debated “Briney bills” seeking to limit landowners’ liability for defensive measures taken against trespassers.[11]

A second case that was more directly significant in the foundation of section 52’s flagrant trespasser approach is Bodine v. Enterprise High School, which gained notoriety in the mid-1980s.[12] In Bodine, a teenager named Ricky climbed onto the roof of a high school building without permission in March 1982.[13] According to at least one version of events, he undertook this adventure “on something of a frolic.”[14] Unfortunately, Ricky “crashed through a painted-over and wholly undetectable skylight, fell thirty feet onto his head, and was rendered a quadriplegic.”[15] The teenager sued the school district for negligence and obtained a substantial settlement.[16] Beginning in the 1980s, indignant tort-reform advocates circulated widely perhaps exaggerated renditions of Bodine’s facts as an illustration of torts law gone wild.

One of the most significant tort-reform efforts that relied heavily on public anger over Bodine was California’s Civil Code section 847, which was enacted in 1985.[17] The law was “largely motivated by the Bodine case.”[18] As described by the Reporters’ Note to Restatement (Third) section 52, the California law “exempts land possessors from liability to entrants on the land who commit any one of 25 specified felonies, save for willful, wanton, or criminal conduct by the land possessor.”[19] The Restatement (Third)cites the law as supportive of its flagrant trespassers standard.  Professor Stephen Sugarman’s article in the Wake Forest Law Review symposium issue addressing the Restatement (Third) of Torts stated that section 52 is “broadly based” on the California statute.[20]

Strong public reactions to cases like Briney and Bodine demonstrate that the significance of successful tort claims by morally culpable trespassers goes far beyond the amount of money involved in the lawsuits.  In the eyes of many members of the public, these cases have served as an indictment of the civil justice system in general.  The impact of Brineyand Bodine demonstrates that the public emphatically desires clear distinctions between morally blameworthy trespassers and others regarding their ability to sue a land possessor.  The Restatement (Third) standard appropriately responds to this strong public sentiment.

Perhaps the most creative aspect of the Restatement (Third) standard is its adoption of the term “flagrant” to describe the type of trespassers to whom a duty is the most limited.  The Restatement (Third) acknowledges that “the concept of a flagrant trespasser is new to the Restatement of Torts” and describes it as an effort to synthesize divided approaches in the courts regarding how to address trespassers.[21] The Restatement (Third) describes “flagrant” as being used “in the sense of egregious or atrocious,” but also states that “no single word can capture the concept” and that different jurisdictions might develop somewhat varying interpretations reflecting how they choose to balance human safety and property-ownership rights.[22]

Given its novelty, it is not surprising that some challenges to the choice of the word “flagrant” have already arisen among scholars.  In 2009, Professor James Henderson argued in an article in the Wake Forest Law Review addressing section 52 that he would prefer the terms “undeserving” or “reprehensible” because “[t]hese adjectives more candidly signal that it is not the entry without permission, as such, that is different from one case to the next, but rather the moral standing of any trespasser to insist that the possessor invest in precautions on his behalf.”[23] Professor Henderson also noted that an earlier draft of the standard used the word “culpable” and stated that he prefers “culpable” over “flagrant” as well.[24]

Interestingly, Professor Henderson also used the term “bad guy” to describe the kind of trespasser the standard is seeking to exclude, but he did not suggest this term in his list of preferable alternatives to “flagrant.”[25] Professor Sugarman also used the term “bad guy” to describe the type of trespasser at issue in his 2009 Wake Forest Law Review article addressing the standard.[26] The term seems to fit the general sentiment of the standard.  One might guess that the Restatement (Third) did not use the term “bad guy” and that neither Professor Henderson nor Professor Sugarman suggested it as the term that should be used, despite using it themselves, in part because it is so informal, vague, and imprecise.

Of course, a Restatement cannot credibly propose that courts adopt a formal duty limitation for a category of plaintiffs termed “bad guy” trespassers.  However, I propose that the moral sentiment reflected in this loose and informal language is more or less what the courts seem to be getting at in these kinds of trespasser cases, and thus that any specific language used by the Restatement (Third) or by the courts will probably not be decisive regarding how cases are decided so long as it successfully conveys this moral theme.  Whether one favors the Restatement (Third)’s word “flagrant,” or instead favors “undeserving,” “reprehensible,” “culpable,” or some other word, the results in litigated cases will likely be mostly the same—so long as the idea is generally communicated that “bad guys” who have the chutzpah to trespass under morally condemnable circumstances and then sue if they are hurt on the property should lose in most circumstances.

Tort liability decision makers may be more focused on finding a way to apply their “rough sense of justice” than on precise language used in legal standards.[27] The term “flagrant” trespasser seems to give decision makers a solid vehicle for reaching decisions consistent with their rough sense of justice, while allowing jurisdictions flexibility to impose at least some boundaries on how the standard is interpreted.  In the United States at present, one of the most common associations with the word “flagrant” may be the concept of a particularly egregious foul in the sport of basketball.  The National Federation of State High School Associations defines a flagrant foul as “a personal or technical foul of a violent or savage nature.”[28] The National Collegiate Athletic Association (“NCAA”) defines a flagrant foul as “a personal foul that involves severe contact with an opponent or involves contact that is extreme in nature while the ball is live.”[29] The National Basketball Association (“NBA”) defines a flagrant foul as “unnecessary and/or excessive contact” committed by a player.[30] If a flagrant foul is sufficiently serious, the offending player may be ejected from the game and, in the NBA, subjected to a fine.[31] The sense of moral indignation basketball fans sometimes feel over the commission of a flagrant foul[32] may be at least loosely comparable to the moral indignation that prevents injured “bad guy” trespassers from recovering tort damages in most circumstances.

The history of courts struggling with distinctions between invitees, licensees, and trespassers in various circumstances illustrates the difficulty in trying to be too detailed and concrete regarding land-possessor liability rules.  This was part of the message of Rowland v. Christian, which triggered the string of cases replacing these distinctions in part or in whole with a general duty of reasonable care.[33] Rejecting “rigid classifications”[34] that led to “confusion, complexity, and fictions,”[35] the court held that applying a more case-specific standard of reasonableness under the circumstances would better promote justice.[36]

Although the Rowland court was perceptive in critiquing the complex and rigid rules that previously characterized land possessor liability standards, it went a bit further than many members of the public were willing to travel by extending a duty of due care even to “bad guy” trespassers.  As illustrated by California’s enactment of Civil Code section 847, society’s rough sense of justice favored disallowing such claims in most circumstances, and that rough sense of justice trumped Rowland.  The Restatement (Third)’s flagrant-trespassers approach recognizes the disconnect between this aspect of Rowland and societal values that has become increasingly apparent over time.  The Restatement (Third)’s approach promotes honoring general but strongly felt moral distinctions that society holds dear rather than seeking to engineer a standard that may not have sufficient grounding in the reality of torts law.

Professor Sugarman pointed out that what he calls “trumping values” may provide a good basis for declining to impose a duty of due care in these cases.[37] Perhaps a “trumping value” may be considered one that stands out of the ordinary, leading a court to act differently than it would in most circumstances.  Professor Sugarman recognized that the trumping value in flagrant trespasser cases is that “the land possessor’s ordinary right to control access to the land is too offended if a victim who entered without consent and intent on egregious wrongdoing is allowed to recover in tort from the land possessor.”[38]

Similarly, general tort standards should be trumped if in a particular application they cause too much offense to strong societal values.  Precisely because societal values seem to be so strongly offended in cases involving bad-guy trespassers winning tort damages, the exact language used to flag a bad-guy situation is not nearly as important as the broader acknowledgement that declining to extend a duty to bad guy trespassers is appropriate.  Most tort liability decision makers will bring with them to the court room a strong desire to limit or negate liability in such cases; in most cases these decision makers will not likely need more than language providing the general sense that the “bad guys” described by Professors Henderson and Sugarman should not prevail absent the special circumstances set forth in the Restatement (Third).  The words “undeserving” or “reprehensible” would also probably work, but “flagrant” has a moral tone that seems to fit the underlying basis for limiting duty in these cases.  Society’s rough sense of justice is an intensely consequential issue in this area of tort law, and the Restatement (Third)’s standard is a worthy structure for housing it.

* John W. Wade Professor of Law, Pepperdine University School of Law.  I wish to thank Kendra Lounsberry for her excellent research assistance.

[1]. According to the American Law Institute,

Restatements are addressed to courts and others applying existing law.  They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might plausibly be stated by a court.  Restatement black-letter formulations assume the stance of describing the law as it is.

Am. Law Inst., Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 4 (2005), available at

[2]. Reporters’ note for Restatement § 51 identifies three major approaches for determining land possessor liability to trespassers.  Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 51 reporters’ note cmt. a (Tentative Draft No. 6, 2009).  Twenty-four states still follow the traditional common law rule that distinguishes between trespassers, invitees, and licensees.  Id. Under this approach, land possessors do not owe a duty of reasonable care to trespassers, although there are a number of exceptions.  Id.Nine states follow a second major approach, which eliminates the distinctions between entrants and instead adopts a unitary duty of reasonable care.  Id. The seminal case adopting this approach is Rowland v. Christian, 443 P.2d 561 (Cal. 1968).  Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 51 reporters’ note cmt. a (Tentative Draft No. 6, 2009).  Fifteen states follow the third approach, a variation of Rowland, which applies a unitary standard of reasonable care to licensees and invitees but eliminates a duty of care towards trespassers.  See id.

[3]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 (Tentative Draft No. 6, 2009).

[4]. In reference to a California statute limiting land possessors’ liability to trespassers engaged in any of twenty-five specified felonies, the Reporters noted that “[i]n the 22 years between the time the California statute was enacted and this Reporters’ Note was prepared, it has been invoked exceedingly rarely.”  Id.

[5]. 183 N.W.2d 657 (Iowa 1971).

[6]. See, e.g., George C. Christie et al., Cases and Materials on the Law of Torts 93 (4th ed. 2004); John L. Diamond, Cases and Materials on Torts 67 (2d ed. 2008); Meredith J. Duncan & Ronald Turner, Torts: A Contemporary Approach 152 (2010); Ward Farnsworth & Mark F. Grady, Torts: Cases and Questions 85 (2d ed. 2009); Marc A. Franklin, Robert L. Rabin & Michael D. Green, Tort Law and Alternatives: Cases and Materials 937 (8th ed. 2006); Thomas C. Galligan et al., Tort Law: Cases, Perspectives, and Problems 144 (4th ed. 2007); John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, Tort Law: Responsibilities and Redress 603 (2d ed. 2008); David W. Robertson et al., Cases and Materials on Torts 63 (2d ed. 1998); Victor E. Schwartz, Kathryn Kelly & David F. Partlett, Prosser, Wade and Schwartz’s Torts: Cases and Materials 107 (11th ed. 2005).

[7]. Briney, 183 N.W.2d at 658.

[8]. Id.

[9]. Id. at 662.  The plaintiff clearly proceeded on an intentional tort theory, and William Prosser suggested that battery is the correct action, but the case does not actually state which cause or causes of action were pleaded. See Geoffrey W.R. Palmer, The Iowa Spring Gun Case: A Study in American Gothic, 56 Iowa L. Rev. 1219, 1223–1225 (1971).

[10]. As described in Prosser, Wade & Schwartz’s Torts:

Katko pled guilty to petty larceny and received a 30-day suspended sentence and a $50 fine.  The Brineys had to sell 80 acres of their 120 acre farm in order to pay the judgment in this case.  A strange development later arose between the parties.  When the 80 acres were put up for judgment sale and there were no bids above the minimum price of $10,000, three neighbors borrowed money to purchase the land for a dollar more, expecting to hold it for the Brineys until they won their appeal.  When they did not win, the neighbors leased the land back to them for enough to pay taxes and interest costs on the money the neighbors had borrowed.  Several years later when land values rose, the neighbors offered to sell it back to Brineys at a price they could not afford.  One of the neighbors then bought the property from the others for $16,000 and sold it to his son for $16,500.  The Brineys and Katko, to whom the Brineys still owed money from the judgment, then sued the neighbors, arguing that the land was being held in trust for the Brineys and that they were entitled to the profit from the increase in value.  Just before the case came to trial, it was settled for a sum large enough to pay the remainder of Brineys’ judgment to Katko.

Schwartz, Kelly & Partlett, supra note 6, at 110.

[11]. Id.

[12]. Bodine v. Enterprise High School was settled out of court.  For a discussion of the facts of Bodine, see Wendy Lilliedoll, An Unexpected Windfall for California’s Tort Reform Movement: Bodine v. Enterprise High School 12–15 (2004) (unpublished student paper), available at
/faculty/sugarmans/ (follow “Wendy Lilliedoll: An Unexpected Windfall for California’s Tort Reform Movement: Bodine v. Enterprise High School” hyperlink).  Professor Stephen Sugarman described the Bodine case as “celebrated.”  Stephen D. Sugarman, Land-Possessor Liability in the Restatement (Third) of Torts: Too Much and Too Little, 44 Wake Forest L. Rev. 1079, 1082 (2009).

[13]. Lilliedoll, supra note 12, at 13–14.

[14]. Id. at 1.

[15]. Id.

[16]. Id. at 3.

[17]. Id. at 38.

[18]. Id. at 39; see also Sugarman, supra note 12, at 1082.

[19]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 reporters’ note cmt. a (Tentative Draft No. 6, 2009).

[20]. Sugarman, supra note 12, at 1082.

[21]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 cmt. a (Tentative Draft No. 6, 2009).

[22]. Id.

[23]. James A. Henderson, Jr., The Status of Trespassers on Land, 44 Wake Forest L. Rev. 1071, 1077 (2009).

[24]. Id.

[25]. Id. at 1075, 1077.

[26]. Sugarman, supra note 12, at 1082.  Professor Sugarman used the term in quotes and, not surprisingly, did not suggest that it should replace the word “flagrant.”

[27]. Justice William S. Andrews famously used the phrase “rough sense of justice” to describe the overall process of making proximate-cause determinations in Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 352 (1928) (dissenting).  I have grown increasingly attached to his phrase as a general description of the moral impulses that often drive tort law. See, e.g., Richard L. Cupp, Jr., Believing in Products Liability: Reflections on Daubert, Doctrinal Evolution, and David Owen’s Products Liability Law, 40 U.C. Davis L. Rev. 511, 517, 527–28 (2006); Richard L. Cupp, Jr. & Danielle Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis, 77 N.Y.U. L. Rev. 874, 922, 927 (2002).

[28]. The Nat’l Fed’n of State High School Ass’ns, 2009–10 NFHS High School Basketball Rules Book 30 (Mary E. Struckhoff ed., 2009).

[29]. Nat’l Collegiate Athletic Ass’n, NCAA Basketball 2010 and 2011 Men’s and Women’s Rules 71 (Ty Halpin & Rachel Seewald eds., 2009), available at

[30]. Rule No. 4–Definitions, (Jan. 31, 2001, 12:00 A.M.),

[31]. Rule No. 12–Fouls and Penalties, (Jan. 31, 2001, 12:00 A.M.),

[32]. This assumes, of course, that a player for the team a fan does not like committed the flagrant foul.  Flagrant fouls in basketball never seem quite as heinous when committed by a player for whom the fan has a positive bias.  An analogy to perceptions of flagrant trespassers may fit here as well.

[33]. Rowland v. Christian, 443 P.2d 561 (Cal. 1968), superseded by statute, Cal. Civ. Code § 846 (West 2010).

[34]. Id. at 568.

[35]. Id. at 569.

[36]. Id. at 568.

[37]. Sugarman, supra note 12, at 1083.

[38]. Id.