Outdoor bar patio area elevated 10’ above concrete sidewalk. A 30” high wall surrounded edge, always used for sitting upon. A guest was shoved over wall by another guest who attacked him. Defense position was business owner not responsible for criminal acts on property. Our position was wall was not to code (42” height) and owner should have anticipated problems from drinking and fights, given this hazard. The case was settled for millions.
Section 335 - Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area. A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if:
(a) the condition
(i) is on which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe such trespassers will not discover it, and
(b) the possessor has bailed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
Section 337 - Artificial Conditions Highly Dangerous to Known Trespassers. - A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if:
(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and
(b) the condition is of such nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.
Section 339 - Artificial Conditions Highly Dangerous to Trespassing Children - A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
(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 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.
Section 343 - Dangerous Conditions Known to or Discoverable by Possessor. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Section 343A - Known or Obvious Dangers. (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.