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MEMORANDUM1
PRIVILEDGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT2
TO: Sarah Holderness
FROM: Larry Simonds
RE: Chris Walker’s Barn3
DATE:April 29, 2011
ISSUE4
Under North Carolina5
law, does the family of a minor have a prima facie case for
negligence under the doctrine of attractive nuisance, against a property owner for injuries
incurred by the minor in the property owner’s barn on March 19, 2011?
BRIEF ANSWER
No.6
A court is not likely to impose liability on a landowner who made his property
available to the public at no charge.7
The property owner did not owe the minor a special duty of
care under North Carolina law. North Carolina General Statute § 38A-4 limits a landowner’s
duty.8
A North Carolina court will likely find that the minor was a mere9
trespasser on the
1
Rhetorical Note: Ethos is defined as, argument by character, one of Aristotle’s three appeals; the other two are
pathos (argument by emotion) and logos (argument by logic.) It was my intention to define my rhetoric, by using
the word memorandum at the top of the page, signaling to the reader, that my rhetorical commitment would be
to construct my writing in the style and tone of aninter-office memorandum.
2
Rhetorical Note: The use of the work product clause is a device to build rapport with the write and the potential
reader of the interoffice memo. I wanted anyone viewing the document to immediately realize that the text was
confidential and privileged work product. This was done to assure first and foremost, me, that I was free to speak
both about the good points as well as the potential pitfalls of our negligence defense. Secondly, I wanted to assure
any potential reader that this memo would stay in house and only be used for the benefit of our law firm.
3
Rhetorical Note: For filing purposes and immediate recognition by the reader, I included the subject line to make
as simple as possible the process of recognizing what this memo was going to talk about. Also, Aristotle believed in
the power of threes. In the three T’s model: I thought it was useful to tell the reader what we were going to talk
about, tell the reader, and then tell the reader what we talked about.
4
Rhetorical Note: “Appropriate headings and subheadings increase clarity. They explain where the brief is going
and provide signposts along the way. The captions should be as brief as possible, but sufficiently explicit to
describe the point.” Daniel M. Friedman, Winning on Appeal, 9 LITIG.15, 17 (Spring 1983).
5
Rhetorical Note: I had NC statutory law here. I removed the word “Statutory” for both space and clarity. I
discussed case law as well as statutory law in the memo, as a result, “law” was more appropriate.
6
Rhetorical Note: “Unfortunately, the judge (or in this case the supervising attorney) does not possess the luxury
of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait.”
Rugerro J. Aldisert, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT 142 (NITA 2003).
7
Rhetorical Note: “*Y+ou should explain not only what the case is about and what the background law is about, but
also why the case is important (or unimportant) – what if anything turns on the outcome, either for the parties or
some larger community.” Richard A. Posner,Convincing a Federal Court of Appeals, 25 LITIG.3, 3 (Winter 1999).
8
Rhetorical Note: “I have seen page after page of quoted materials in some briefs and have thought: “What a
waste of precious time!” Excessive quotation leaves little space for persuasion. Paraphrase!” Roger J. Miner, “Do’s”
for Appellate Brief Writers, 3 Scribes J. LEGAL WRITING 19, 23 (1992).
2
landowner’s property. As such, the duty of care owed by the landowner, according to North
Carolina case law, was to avoid willfully or wantonly injuring the youthful trespasser. The land
owner did adhere to this standard10
.
The minor in the instant case, is likely to be found, by the finder of fact, capable of
conforming her actions to a reasonable person standard. The attractive nuisance exception will
likely not be made available to the minor by a jury. North Carolina has a special dispensation for
trespassers who are very young, called, the attractive nuisance doctrine. The Supreme Court of
North Carolina adoptedRestatement (Second) of Torts § 339 in 1985. In part, the Restatement
reads,“A possessor of land is subject to liability for physical harm to children trespassing thereon
caused by an artificial condition (the land owner’s barn) upon the land… ifthe [child] because of
[her] youth [did] not discover the condition or realize the risk involved in intermeddling with it
or in coming within the area made dangerous by it.11
” North Carolina courts have consistently
held that the attractive nuisance doctrine was designed to protect small children or children of
tender years. Because of the minor’s age, experience and intelligence, the land owner will not be
held liable for the injuries incurred by the minor, under the doctrine of attractive nuisance.12
FACTS
Chris Walker (Walker) has asked our firm to analyze claims that the family of Avery
Rose (Rose) may have against him for events that took place on March 19, 2011.13
Walker owns
40 acres of scenic property outside of Asheville, North Carolina. A new housing development
has recently been built adjacent to his property. He allows the community to use his property
recreationally.
9
Rhetorical Note: I chose to use innuendo to start planting the idea in the reader’s mind slowly that Rose (the
injured child) was the wrongdoer, the trespasser.
10
Rhetorical Note: “We simply don’t have time to ferret out one bright idea buried in too long a sentence.” Ruth
Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. REV. 567 (1999).
11
Rhetorical Note: “Quoting at length from opinion after opinion is a lazy way of writing a brief, and the finished
product is likely to be unconvincing. Long before the brief approaches its end, the reader has begun to skip over
quotations. If used with discretion, however, pertinent quotations from judicial opinions give a brief (or in this
case: memo) force and emphasis. Roger J. Miner, “Do’s” for Appellate Brief Writers, 3 Scribes J. LEGAL WRITING 19,
23 (1992).
12
Rhetorical Note: Logos: Argument by logic, one of Aristotle’s three appeals.
13
Rhetorical Note: “Too often lawyers jump right into the legal nuances of the case without explaining, in clear
terms, the legal context in which the case arises.” Twenty Questions for Chief Justice Shirley S. Abrahamson of the
Chief Justice of Wisconsin, available at http://howappealling.law.com/20q/2004_09_01_20q-
appellateblog_archive.html.
3
Rose, who is a very bright ten-year-old, was exploring the forests and meadows in, on,
and around Walker’s 40 acreswhen she happened uponWalker’s uninhabited barn.14
Rose was
strong enough to crack open the door and slip through the narrow opening.
Once inside the barn, Rose tried to climb the ladder that lead to the hayloft, one of the
rungs snapped and Rose fell, she sprained her right wrist, and her right hand was punctured by a
rusty hay hook15
.
DISCUSSION
Walker likely owed Rose the same duty as he owed any trespasser upon his land,
according to North Carolina statutory law. Except as specifically recognized by or provided for
in this Chapter (Landowner Liability), an owner of land who either directly or indirectly invites
or permits without charge any person to use such land for educational or recreational purposes
owes the person the same duty of care that he owes a trespasser, except nothing in this Chapter
shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall
inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge.
N.C. Gen. Stat. § 38A-4
This statute is intended to protect property owners from direct or indirect invitees who are
injured while taking advantage of the landowner’s property. Further, the statute expressly states
that the policy and “the purpose of this chapter (Landowner Liability) is to encourage owners of
land to make land and water areas available to the public at no cost for educational and
14
Rhetorical Note: “It’s got to be a good story. I mean every lawsuit is a story. . . . *y+ou want it to be a little bit of a
page turner, to have some sense of drama, some building up to the legal arguments. . . . [y]our looking for a couple
of hooks in the facts that are going to be repeated in the legal argument, but also are going to catch somebody’s
interest. It may not have much to do with the subtle legal argument, but you want to catch their eyes. Interview by
Brian A. Garner with John G. Roberts, Chief Justice of the United States, Washington, D.C. (2006-2007), available at
http://www.lawprose.org.supreme_court.php.
15
Rhetorical Footnote: enargeia– The special effect of figures that makes an audience believe something is taking
place before their very eyes.
4
recreational purposes by limiting the liability of the owner to persons entering the land for those
purposes.”N.C. Gen. Stat. § 38A-1.A landowner’s only duty owed to a trespasser is to refrain
from willfully or wantonly injuring the trespasser. Howard v. Jackson, 120 N.C. 243, 247
(1992); Hoots v. Pryor, 106 N.C. App. 397, 407 (1992).16
In the instant case, Walker does allow people to use his land for walking, picnicking, bird
watching and generally enjoying the beautiful scenery.17
The statute says that whether Rose was
invited directly or indirectly onto the property, that he owes her the same duty that he would a
mere trespasser. Walker did not have, a purposeful intent to injure Rose (willful), act with
intentional indifference toward Rose (wanton), nor did he have actual knowledge of the danger
to Rose. As such, the duty of care owed by Walker, according to North Carolina case law, was to
avoid willfully or wantonly injuring the youthful trespasser. Walker adhered to theapplicable
standard of care and fulfilled the only duty that was owed, therefore, Walker will likely not be
held liable for Rose’s injuries under statutory law.18
Rose’s family probably does not have a cause of action against Walker for negligence
under the doctrine of attractive nuisance. In order to establish a prima facieclaim for negligence
under an attractive nuisance theory, a plaintiff must show that (a) the place where the condition
exists is one upon which the possessor knows or has reason to know that children are likely to
trespass, and (b) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or serious bodily
16
Rhetorical Note: Once again, Aristotle’s love of things that come in threes appears. This is forensic (legal) rhetoric
which is argument that determines guilt or innocence. Forensic persuasion concerns itself with the things of the
past in order to prove liability. The other two kinds of rhetoric are deliberative (argument about choices and the
future) and demonstrative (argument that deals with values that bring a group together).
17
Rhetorical Note: I attempted to try and drag the facts through the case in order to keep the reader invested in
the story.
18
Rhetorical Note: enthymeme – Rhetoric’s version of a syllogism. The enthymeme stakes a claim and then bases it
on commonly accepted opinion. A little package of logic, it can provide protein to an argument.
5
harm to such children, and (c) the children because of their youth do not discover the condition
or realize the risk involved in intermeddling with it or in coming within the area made dangerous
by it, and (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and (e) the
possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the
children.Broadway v. Blythe, 313 N.C. 150 (1985).
Rose will likely be able to prove the first element of Restatement (Second) of Torts § 339
reads, “A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if the place where the condition exists is
one upon which the possessor knows or has reason to know that children are likely to trespass…”
This element flows from Broadway, wherein the defendant had been warned that there were
children nearby and that they would likely play on the large pipes the defendant had delivered to
a construction site. 313 N.C. 150 (1985). A Court of Appeals examined North Carolina case law
and decided that the attractive nuisance doctrine was limited to conditions which are not “natural
and obvious.” Leonard v. Lowe’s Home Centers Inc., 131 N.C. App. 304 (1998). Landowner’s
alterations to their own property are not enough to justify the application of the attractive
nuisance doctrine, because such changes may be so “common, obvious, and pervasive to be
exempt from the child trespasser doctrine.” Id. at 308.
In the instant case, Walker knew or should have known that there was a new housing
development in the area, which would increase the likelihood that children would be at play in,
on, or around his property.19
19
Rhetorical Note: I buried this fact in the middle. I decided to implement the strategy of putting my bad facts in
the middle of the memo in order to lighten their effect on the reader. I thought this was an effective rhetorical
choice. I wanted to include the bad facts, but not go make them as obvious or apparent to the reader.
6
Rose will probably be able to prove that she was injured by an artificial or man-made
condition that existed on Walker’s land (the barn), thus meeting the second element, that of,
“…which the possessor knows or has reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to such children.” Roberson v. City
of Kinston, 261 N.C. 135 (1964).20
Rose will most likely fail to prove the third element of the Restatement which states, “the
children because of their youth do not discover the condition or realize the risk involved in
intermeddling with it or in coming within the area made dangerous by it.”
While in general the standard of care is an objective test, special duty rules apply to
certain groups of people the law considers to be unable to conform their acts to the reasonable
person standard. The most common exception is made for children. Children’s aptitude in
evaluating risks varies greatly from child to child, based on their age, experience, and
intelligence. North Carolina adopts an approach towards children, sometimes referred to as the
rule of sevens.21
An infant under the age of seven is deemed by courts to be irrefutably incapable
of unreasonable conduct. From seven to fourteen the child is presumed to be incapable of
unreasonable conduct, however, the presumption may be rebutted by proof that the child in fact
had the requisite capacity. Bell v. Page, 271 N.C. 396, 400 (1967).
The policy behind attractive nuisance was settled by the North Carolina Supreme Court
in 1908. “We think that the law is sustained upon the theory that the infant who enters upon
premises, having no legal right to do so, either by permission, invitation or license or relation to
the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish
curiosity, or in obedience to a childish propensity excited by the character of the structure or
20
Rhetorical Note: Citations are very important. They give your work instant credibility.
21
Rhetorical Note: Colloquial phrases also add credibility.
7
other conditions, he goes thereon and is injured by the failure of the owner to properly guard or
cover the dangerous conditions which he has created, he is liable for such injuries. This we think
sound in principle and humane in policy.” Briscoe v. Henderson Lighting, 148 N.C. 396, 411
(1908). The likelihood of the child being protected under the attractive nuisance theory goes
down as the child’s age increases. The older the child is, the less likely that attractive nuisance
will apply.22
The attractive nuisance doctrine was not made available to a “well developed and
healthy” fourteen year old boy who was injured while trying to operate a crane. Dean v. Wilson
Constr. Co., 251 N.C. 581, 589 (1960). Doctrine was made available to a fifteen year old who
“had the mental capacity of an 8 year old child.” Graham v. Sandhill Power Co., 189 N.C. 381,
385 (1925). Plaintiff being an intelligent eleven-year-old boy who generally knew how to follow
directions and who being deemed capable of recognizing and appreciating the danger inherent in
removing bricks from a free-standing chimney was not afforded the attractive nuisance
doctrine’s protection when said chimney fell upon and killed him. Griffin v. Woodward, 347
N.C. 266 (1997). Again, the doctrine was not made available to an intelligent twelve-year-old
boy who rode his bike across a frozen ice-covered pond, subsequently falling through. Hawkins
v. Houser, 91 N.C. App. 266 (1988). Finally, the doctrine was not made available to an immature
fourteen-year-old who performed poorly in school when he climbed a power tower and was
subsequently electrocuted. Hashtani v. Duke Power Co.,578 F.2d 542 (4th Circuit 1978).23
In the case of Walker, Rose is ten years old and is quite precocious, having
approximately a 134 I.Q. and having been labeled in her school as gifted and talented. According
22
Rhetorical Note: “*G+ood legal writing does not appear as though it was written by a lawyer. Good legal writing,
like good writing in general, is writing that keeps the reader’s interests foremost.”William Eich,Writing the
Persuasive Brief, 20, 55 WIS.LAW.(Feb. 2003).
23
Rhetorical Note: I thought that it was a good idea to add a rundown of the case law in order to prove my point.
8
to www.reuters.com, the average I.Q. among adults is 100.24
Whether or not Rose qualifies for
the attractive nuisance doctrine is certainly a question for a finder of fact, but based on the case
law, it is highly unlikely that Rose will prevail on this element.
Rose will likely succeed in proving that Walker was negligent in not “maintaining the
condition and (because) the burden of eliminating the danger are slight as compared with the risk
to children involved.” For Walker to fix a couple of hinges, maintain a working ladder, and
remove all sharp objects would not have been overly burdensome to Walker.
Finally, the last element, that, Rose may be able to prove is that “the possessor fails to
exercise reasonable care to eliminate the danger or otherwise to protect the children.” A child
was unable to show that a dumpster was a dangerous instrumentality when it tipped over on her
because it could not be proven that the dumpster had ever tipped over before. Feagin v Staton, 72
N.C. App. 678 (1985). On the other hand, the size of the loose pipes created an unreasonable risk
when children played on them. Broadway v. Blythe, 313 N.C. 150, 156 (1985). Rose must show
that the condition was one that posed a serious risk to children. It is more likely than not that
Rose will be able to satisfy this element, since the barn is where Rose injuries occurred.
CONCLUSION
Rose’s family is unlikely to prevail in a claim of negligence under the doctrine of
attractive nuisance because the statute is meant to limit Walker's liability. Walker was doing
exactly what the statute writers intended him to do; opening up his private property to the public
for their enjoyment, both recreationally and educationally. In so doing Rose was unfortunately
injured, but as the case laws and statute dictate, Rose will not be allowed to recoup for the
injuries she suffered. The North Carolina courts and Congress have adopted the policy that the
24
Rhetorical Note: I included the average adult I.Q. in order to show how the youngsters I.Q. was much higer than
the average adult.
9
attractive nuisance doctrine is only available to those small children of tender years. Rose will
likely not be able to prove that she belongs within this group because of her above average
intelligence, age, and experience.25
25
Rhetorical Note: Apparently, I love things that come in threes, just like Aristotle.
10
Rhetorical Analysis
I thought that it would be best for this rhetorical analysis to include what certain judges
thought about legal writing.I wanted to allow these judges to critique my work and speak about it
without me blathering on and on about my decisions. I thought that this technique would add
integrity and credibility to the analysis.These quotes were pulled from articles which were that I
have read over the last two years in order to better understand how to write for courts of appeal.
My goal is to become a criminal defense attorney after I graduate and one day do death penalty
and appeals work.
I wanted to include some of the terminology that I have learned over the years before law
school. I took some rhetoric classes in undergrad. I also studied the over 212 figures of speech
that appear in the old and new testaments of the Bible. I think in the future I will be bolder with
the figures of speech in order to “sell the sizzle.”
The changes that I made are recorded above and why I made those changes. I did not
make many changes to this paper because I was pretty happy with the work. I hope that anyone
who reads will agree. I would love to hear any thoughts or feedback that you may have.

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Rhetorical analysis 2

  • 1. 1 MEMORANDUM1 PRIVILEDGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT2 TO: Sarah Holderness FROM: Larry Simonds RE: Chris Walker’s Barn3 DATE:April 29, 2011 ISSUE4 Under North Carolina5 law, does the family of a minor have a prima facie case for negligence under the doctrine of attractive nuisance, against a property owner for injuries incurred by the minor in the property owner’s barn on March 19, 2011? BRIEF ANSWER No.6 A court is not likely to impose liability on a landowner who made his property available to the public at no charge.7 The property owner did not owe the minor a special duty of care under North Carolina law. North Carolina General Statute § 38A-4 limits a landowner’s duty.8 A North Carolina court will likely find that the minor was a mere9 trespasser on the 1 Rhetorical Note: Ethos is defined as, argument by character, one of Aristotle’s three appeals; the other two are pathos (argument by emotion) and logos (argument by logic.) It was my intention to define my rhetoric, by using the word memorandum at the top of the page, signaling to the reader, that my rhetorical commitment would be to construct my writing in the style and tone of aninter-office memorandum. 2 Rhetorical Note: The use of the work product clause is a device to build rapport with the write and the potential reader of the interoffice memo. I wanted anyone viewing the document to immediately realize that the text was confidential and privileged work product. This was done to assure first and foremost, me, that I was free to speak both about the good points as well as the potential pitfalls of our negligence defense. Secondly, I wanted to assure any potential reader that this memo would stay in house and only be used for the benefit of our law firm. 3 Rhetorical Note: For filing purposes and immediate recognition by the reader, I included the subject line to make as simple as possible the process of recognizing what this memo was going to talk about. Also, Aristotle believed in the power of threes. In the three T’s model: I thought it was useful to tell the reader what we were going to talk about, tell the reader, and then tell the reader what we talked about. 4 Rhetorical Note: “Appropriate headings and subheadings increase clarity. They explain where the brief is going and provide signposts along the way. The captions should be as brief as possible, but sufficiently explicit to describe the point.” Daniel M. Friedman, Winning on Appeal, 9 LITIG.15, 17 (Spring 1983). 5 Rhetorical Note: I had NC statutory law here. I removed the word “Statutory” for both space and clarity. I discussed case law as well as statutory law in the memo, as a result, “law” was more appropriate. 6 Rhetorical Note: “Unfortunately, the judge (or in this case the supervising attorney) does not possess the luxury of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait.” Rugerro J. Aldisert, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT 142 (NITA 2003). 7 Rhetorical Note: “*Y+ou should explain not only what the case is about and what the background law is about, but also why the case is important (or unimportant) – what if anything turns on the outcome, either for the parties or some larger community.” Richard A. Posner,Convincing a Federal Court of Appeals, 25 LITIG.3, 3 (Winter 1999). 8 Rhetorical Note: “I have seen page after page of quoted materials in some briefs and have thought: “What a waste of precious time!” Excessive quotation leaves little space for persuasion. Paraphrase!” Roger J. Miner, “Do’s” for Appellate Brief Writers, 3 Scribes J. LEGAL WRITING 19, 23 (1992).
  • 2. 2 landowner’s property. As such, the duty of care owed by the landowner, according to North Carolina case law, was to avoid willfully or wantonly injuring the youthful trespasser. The land owner did adhere to this standard10 . The minor in the instant case, is likely to be found, by the finder of fact, capable of conforming her actions to a reasonable person standard. The attractive nuisance exception will likely not be made available to the minor by a jury. North Carolina has a special dispensation for trespassers who are very young, called, the attractive nuisance doctrine. The Supreme Court of North Carolina adoptedRestatement (Second) of Torts § 339 in 1985. In part, the Restatement reads,“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition (the land owner’s barn) upon the land… ifthe [child] because of [her] youth [did] not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.11 ” North Carolina courts have consistently held that the attractive nuisance doctrine was designed to protect small children or children of tender years. Because of the minor’s age, experience and intelligence, the land owner will not be held liable for the injuries incurred by the minor, under the doctrine of attractive nuisance.12 FACTS Chris Walker (Walker) has asked our firm to analyze claims that the family of Avery Rose (Rose) may have against him for events that took place on March 19, 2011.13 Walker owns 40 acres of scenic property outside of Asheville, North Carolina. A new housing development has recently been built adjacent to his property. He allows the community to use his property recreationally. 9 Rhetorical Note: I chose to use innuendo to start planting the idea in the reader’s mind slowly that Rose (the injured child) was the wrongdoer, the trespasser. 10 Rhetorical Note: “We simply don’t have time to ferret out one bright idea buried in too long a sentence.” Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. REV. 567 (1999). 11 Rhetorical Note: “Quoting at length from opinion after opinion is a lazy way of writing a brief, and the finished product is likely to be unconvincing. Long before the brief approaches its end, the reader has begun to skip over quotations. If used with discretion, however, pertinent quotations from judicial opinions give a brief (or in this case: memo) force and emphasis. Roger J. Miner, “Do’s” for Appellate Brief Writers, 3 Scribes J. LEGAL WRITING 19, 23 (1992). 12 Rhetorical Note: Logos: Argument by logic, one of Aristotle’s three appeals. 13 Rhetorical Note: “Too often lawyers jump right into the legal nuances of the case without explaining, in clear terms, the legal context in which the case arises.” Twenty Questions for Chief Justice Shirley S. Abrahamson of the Chief Justice of Wisconsin, available at http://howappealling.law.com/20q/2004_09_01_20q- appellateblog_archive.html.
  • 3. 3 Rose, who is a very bright ten-year-old, was exploring the forests and meadows in, on, and around Walker’s 40 acreswhen she happened uponWalker’s uninhabited barn.14 Rose was strong enough to crack open the door and slip through the narrow opening. Once inside the barn, Rose tried to climb the ladder that lead to the hayloft, one of the rungs snapped and Rose fell, she sprained her right wrist, and her right hand was punctured by a rusty hay hook15 . DISCUSSION Walker likely owed Rose the same duty as he owed any trespasser upon his land, according to North Carolina statutory law. Except as specifically recognized by or provided for in this Chapter (Landowner Liability), an owner of land who either directly or indirectly invites or permits without charge any person to use such land for educational or recreational purposes owes the person the same duty of care that he owes a trespasser, except nothing in this Chapter shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge. N.C. Gen. Stat. § 38A-4 This statute is intended to protect property owners from direct or indirect invitees who are injured while taking advantage of the landowner’s property. Further, the statute expressly states that the policy and “the purpose of this chapter (Landowner Liability) is to encourage owners of land to make land and water areas available to the public at no cost for educational and 14 Rhetorical Note: “It’s got to be a good story. I mean every lawsuit is a story. . . . *y+ou want it to be a little bit of a page turner, to have some sense of drama, some building up to the legal arguments. . . . [y]our looking for a couple of hooks in the facts that are going to be repeated in the legal argument, but also are going to catch somebody’s interest. It may not have much to do with the subtle legal argument, but you want to catch their eyes. Interview by Brian A. Garner with John G. Roberts, Chief Justice of the United States, Washington, D.C. (2006-2007), available at http://www.lawprose.org.supreme_court.php. 15 Rhetorical Footnote: enargeia– The special effect of figures that makes an audience believe something is taking place before their very eyes.
  • 4. 4 recreational purposes by limiting the liability of the owner to persons entering the land for those purposes.”N.C. Gen. Stat. § 38A-1.A landowner’s only duty owed to a trespasser is to refrain from willfully or wantonly injuring the trespasser. Howard v. Jackson, 120 N.C. 243, 247 (1992); Hoots v. Pryor, 106 N.C. App. 397, 407 (1992).16 In the instant case, Walker does allow people to use his land for walking, picnicking, bird watching and generally enjoying the beautiful scenery.17 The statute says that whether Rose was invited directly or indirectly onto the property, that he owes her the same duty that he would a mere trespasser. Walker did not have, a purposeful intent to injure Rose (willful), act with intentional indifference toward Rose (wanton), nor did he have actual knowledge of the danger to Rose. As such, the duty of care owed by Walker, according to North Carolina case law, was to avoid willfully or wantonly injuring the youthful trespasser. Walker adhered to theapplicable standard of care and fulfilled the only duty that was owed, therefore, Walker will likely not be held liable for Rose’s injuries under statutory law.18 Rose’s family probably does not have a cause of action against Walker for negligence under the doctrine of attractive nuisance. In order to establish a prima facieclaim for negligence under an attractive nuisance theory, a plaintiff must show that (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily 16 Rhetorical Note: Once again, Aristotle’s love of things that come in threes appears. This is forensic (legal) rhetoric which is argument that determines guilt or innocence. Forensic persuasion concerns itself with the things of the past in order to prove liability. The other two kinds of rhetoric are deliberative (argument about choices and the future) and demonstrative (argument that deals with values that bring a group together). 17 Rhetorical Note: I attempted to try and drag the facts through the case in order to keep the reader invested in the story. 18 Rhetorical Note: enthymeme – Rhetoric’s version of a syllogism. The enthymeme stakes a claim and then bases it on commonly accepted opinion. A little package of logic, it can provide protein to an argument.
  • 5. 5 harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.Broadway v. Blythe, 313 N.C. 150 (1985). Rose will likely be able to prove the first element of Restatement (Second) of Torts § 339 reads, “A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass…” This element flows from Broadway, wherein the defendant had been warned that there were children nearby and that they would likely play on the large pipes the defendant had delivered to a construction site. 313 N.C. 150 (1985). A Court of Appeals examined North Carolina case law and decided that the attractive nuisance doctrine was limited to conditions which are not “natural and obvious.” Leonard v. Lowe’s Home Centers Inc., 131 N.C. App. 304 (1998). Landowner’s alterations to their own property are not enough to justify the application of the attractive nuisance doctrine, because such changes may be so “common, obvious, and pervasive to be exempt from the child trespasser doctrine.” Id. at 308. In the instant case, Walker knew or should have known that there was a new housing development in the area, which would increase the likelihood that children would be at play in, on, or around his property.19 19 Rhetorical Note: I buried this fact in the middle. I decided to implement the strategy of putting my bad facts in the middle of the memo in order to lighten their effect on the reader. I thought this was an effective rhetorical choice. I wanted to include the bad facts, but not go make them as obvious or apparent to the reader.
  • 6. 6 Rose will probably be able to prove that she was injured by an artificial or man-made condition that existed on Walker’s land (the barn), thus meeting the second element, that of, “…which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children.” Roberson v. City of Kinston, 261 N.C. 135 (1964).20 Rose will most likely fail to prove the third element of the Restatement which states, “the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.” While in general the standard of care is an objective test, special duty rules apply to certain groups of people the law considers to be unable to conform their acts to the reasonable person standard. The most common exception is made for children. Children’s aptitude in evaluating risks varies greatly from child to child, based on their age, experience, and intelligence. North Carolina adopts an approach towards children, sometimes referred to as the rule of sevens.21 An infant under the age of seven is deemed by courts to be irrefutably incapable of unreasonable conduct. From seven to fourteen the child is presumed to be incapable of unreasonable conduct, however, the presumption may be rebutted by proof that the child in fact had the requisite capacity. Bell v. Page, 271 N.C. 396, 400 (1967). The policy behind attractive nuisance was settled by the North Carolina Supreme Court in 1908. “We think that the law is sustained upon the theory that the infant who enters upon premises, having no legal right to do so, either by permission, invitation or license or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity excited by the character of the structure or 20 Rhetorical Note: Citations are very important. They give your work instant credibility. 21 Rhetorical Note: Colloquial phrases also add credibility.
  • 7. 7 other conditions, he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries. This we think sound in principle and humane in policy.” Briscoe v. Henderson Lighting, 148 N.C. 396, 411 (1908). The likelihood of the child being protected under the attractive nuisance theory goes down as the child’s age increases. The older the child is, the less likely that attractive nuisance will apply.22 The attractive nuisance doctrine was not made available to a “well developed and healthy” fourteen year old boy who was injured while trying to operate a crane. Dean v. Wilson Constr. Co., 251 N.C. 581, 589 (1960). Doctrine was made available to a fifteen year old who “had the mental capacity of an 8 year old child.” Graham v. Sandhill Power Co., 189 N.C. 381, 385 (1925). Plaintiff being an intelligent eleven-year-old boy who generally knew how to follow directions and who being deemed capable of recognizing and appreciating the danger inherent in removing bricks from a free-standing chimney was not afforded the attractive nuisance doctrine’s protection when said chimney fell upon and killed him. Griffin v. Woodward, 347 N.C. 266 (1997). Again, the doctrine was not made available to an intelligent twelve-year-old boy who rode his bike across a frozen ice-covered pond, subsequently falling through. Hawkins v. Houser, 91 N.C. App. 266 (1988). Finally, the doctrine was not made available to an immature fourteen-year-old who performed poorly in school when he climbed a power tower and was subsequently electrocuted. Hashtani v. Duke Power Co.,578 F.2d 542 (4th Circuit 1978).23 In the case of Walker, Rose is ten years old and is quite precocious, having approximately a 134 I.Q. and having been labeled in her school as gifted and talented. According 22 Rhetorical Note: “*G+ood legal writing does not appear as though it was written by a lawyer. Good legal writing, like good writing in general, is writing that keeps the reader’s interests foremost.”William Eich,Writing the Persuasive Brief, 20, 55 WIS.LAW.(Feb. 2003). 23 Rhetorical Note: I thought that it was a good idea to add a rundown of the case law in order to prove my point.
  • 8. 8 to www.reuters.com, the average I.Q. among adults is 100.24 Whether or not Rose qualifies for the attractive nuisance doctrine is certainly a question for a finder of fact, but based on the case law, it is highly unlikely that Rose will prevail on this element. Rose will likely succeed in proving that Walker was negligent in not “maintaining the condition and (because) the burden of eliminating the danger are slight as compared with the risk to children involved.” For Walker to fix a couple of hinges, maintain a working ladder, and remove all sharp objects would not have been overly burdensome to Walker. Finally, the last element, that, Rose may be able to prove is that “the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” A child was unable to show that a dumpster was a dangerous instrumentality when it tipped over on her because it could not be proven that the dumpster had ever tipped over before. Feagin v Staton, 72 N.C. App. 678 (1985). On the other hand, the size of the loose pipes created an unreasonable risk when children played on them. Broadway v. Blythe, 313 N.C. 150, 156 (1985). Rose must show that the condition was one that posed a serious risk to children. It is more likely than not that Rose will be able to satisfy this element, since the barn is where Rose injuries occurred. CONCLUSION Rose’s family is unlikely to prevail in a claim of negligence under the doctrine of attractive nuisance because the statute is meant to limit Walker's liability. Walker was doing exactly what the statute writers intended him to do; opening up his private property to the public for their enjoyment, both recreationally and educationally. In so doing Rose was unfortunately injured, but as the case laws and statute dictate, Rose will not be allowed to recoup for the injuries she suffered. The North Carolina courts and Congress have adopted the policy that the 24 Rhetorical Note: I included the average adult I.Q. in order to show how the youngsters I.Q. was much higer than the average adult.
  • 9. 9 attractive nuisance doctrine is only available to those small children of tender years. Rose will likely not be able to prove that she belongs within this group because of her above average intelligence, age, and experience.25 25 Rhetorical Note: Apparently, I love things that come in threes, just like Aristotle.
  • 10. 10 Rhetorical Analysis I thought that it would be best for this rhetorical analysis to include what certain judges thought about legal writing.I wanted to allow these judges to critique my work and speak about it without me blathering on and on about my decisions. I thought that this technique would add integrity and credibility to the analysis.These quotes were pulled from articles which were that I have read over the last two years in order to better understand how to write for courts of appeal. My goal is to become a criminal defense attorney after I graduate and one day do death penalty and appeals work. I wanted to include some of the terminology that I have learned over the years before law school. I took some rhetoric classes in undergrad. I also studied the over 212 figures of speech that appear in the old and new testaments of the Bible. I think in the future I will be bolder with the figures of speech in order to “sell the sizzle.” The changes that I made are recorded above and why I made those changes. I did not make many changes to this paper because I was pretty happy with the work. I hope that anyone who reads will agree. I would love to hear any thoughts or feedback that you may have.