1MEMORANDUM1PRIVILEDGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT2TO: Sarah HoldernessFROM: Larry SimondsRE: Chris Walker’s Barn3DATE:April 29, 2011ISSUE4Under North Carolina5law, does the family of a minor have a prima facie case fornegligence under the doctrine of attractive nuisance, against a property owner for injuriesincurred by the minor in the property owner’s barn on March 19, 2011?BRIEF ANSWERNo.6A court is not likely to impose liability on a landowner who made his propertyavailable to the public at no charge.7The property owner did not owe the minor a special duty ofcare under North Carolina law. North Carolina General Statute § 38A-4 limits a landowner’sduty.8A North Carolina court will likely find that the minor was a mere9trespasser on the1Rhetorical Note: Ethos is defined as, argument by character, one of Aristotle’s three appeals; the other two arepathos (argument by emotion) and logos (argument by logic.) It was my intention to define my rhetoric, by usingthe word memorandum at the top of the page, signaling to the reader, that my rhetorical commitment would beto construct my writing in the style and tone of aninter-office memorandum.2Rhetorical Note: The use of the work product clause is a device to build rapport with the write and the potentialreader of the interoffice memo. I wanted anyone viewing the document to immediately realize that the text wasconfidential and privileged work product. This was done to assure first and foremost, me, that I was free to speakboth about the good points as well as the potential pitfalls of our negligence defense. Secondly, I wanted to assureany potential reader that this memo would stay in house and only be used for the benefit of our law firm.3Rhetorical Note: For filing purposes and immediate recognition by the reader, I included the subject line to makeas simple as possible the process of recognizing what this memo was going to talk about. Also, Aristotle believed inthe power of threes. In the three T’s model: I thought it was useful to tell the reader what we were going to talkabout, tell the reader, and then tell the reader what we talked about.4Rhetorical Note: “Appropriate headings and subheadings increase clarity. They explain where the brief is goingand provide signposts along the way. The captions should be as brief as possible, but sufficiently explicit todescribe the point.” Daniel M. Friedman, Winning on Appeal, 9 LITIG.15, 17 (Spring 1983).5Rhetorical Note: I had NC statutory law here. I removed the word “Statutory” for both space and clarity. Idiscussed case law as well as statutory law in the memo, as a result, “law” was more appropriate.6Rhetorical Note: “Unfortunately, the judge (or in this case the supervising attorney) does not possess the luxuryof 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).7Rhetorical Note: “*Y+ou should explain not only what the case is about and what the background law is about, butalso why the case is important (or unimportant) – what if anything turns on the outcome, either for the parties orsome larger community.” Richard A. Posner,Convincing a Federal Court of Appeals, 25 LITIG.3, 3 (Winter 1999).8Rhetorical Note: “I have seen page after page of quoted materials in some briefs and have thought: “What awaste 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).
2landowner’s property. As such, the duty of care owed by the landowner, according to NorthCarolina case law, was to avoid willfully or wantonly injuring the youthful trespasser. The landowner did adhere to this standard10.The minor in the instant case, is likely to be found, by the finder of fact, capable ofconforming her actions to a reasonable person standard. The attractive nuisance exception willlikely not be made available to the minor by a jury. North Carolina has a special dispensation fortrespassers who are very young, called, the attractive nuisance doctrine. The Supreme Court ofNorth Carolina adoptedRestatement (Second) of Torts § 339 in 1985. In part, the Restatementreads,“A possessor of land is subject to liability for physical harm to children trespassing thereoncaused 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 itor in coming within the area made dangerous by it.11” North Carolina courts have consistentlyheld that the attractive nuisance doctrine was designed to protect small children or children oftender years. Because of the minor’s age, experience and intelligence, the land owner will not beheld liable for the injuries incurred by the minor, under the doctrine of attractive nuisance.12FACTSChris Walker (Walker) has asked our firm to analyze claims that the family of AveryRose (Rose) may have against him for events that took place on March 19, 2011.13Walker owns40 acres of scenic property outside of Asheville, North Carolina. A new housing developmenthas recently been built adjacent to his property. He allows the community to use his propertyrecreationally.9Rhetorical Note: I chose to use innuendo to start planting the idea in the reader’s mind slowly that Rose (theinjured child) was the wrongdoer, the trespasser.10Rhetorical Note: “We simply don’t have time to ferret out one bright idea buried in too long a sentence.” RuthBader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. REV. 567 (1999).11Rhetorical Note: “Quoting at length from opinion after opinion is a lazy way of writing a brief, and the finishedproduct is likely to be unconvincing. Long before the brief approaches its end, the reader has begun to skip overquotations. If used with discretion, however, pertinent quotations from judicial opinions give a brief (or in thiscase: memo) force and emphasis. Roger J. Miner, “Do’s” for Appellate Brief Writers, 3 Scribes J. LEGAL WRITING 19,23 (1992).12Rhetorical Note: Logos: Argument by logic, one of Aristotle’s three appeals.13Rhetorical Note: “Too often lawyers jump right into the legal nuances of the case without explaining, in clearterms, the legal context in which the case arises.” Twenty Questions for Chief Justice Shirley S. Abrahamson of theChief Justice of Wisconsin, available at http://howappealling.law.com/20q/2004_09_01_20q-appellateblog_archive.html.
3Rose, 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.14Rose wasstrong 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 therungs snapped and Rose fell, she sprained her right wrist, and her right hand was punctured by arusty hay hook15.DISCUSSIONWalker 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 forin this Chapter (Landowner Liability), an owner of land who either directly or indirectly invitesor permits without charge any person to use such land for educational or recreational purposesowes the person the same duty of care that he owes a trespasser, except nothing in this Chaptershall be construed to limit or nullify the doctrine of attractive nuisance and the owner shallinform direct invitees of artificial or unusual hazards of which the owner has actual knowledge.N.C. Gen. Stat. § 38A-4This statute is intended to protect property owners from direct or indirect invitees who areinjured while taking advantage of the landowner’s property. Further, the statute expressly statesthat the policy and “the purpose of this chapter (Landowner Liability) is to encourage owners ofland to make land and water areas available to the public at no cost for educational and14Rhetorical 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 apage turner, to have some sense of drama, some building up to the legal arguments. . . . [y]our looking for a coupleof hooks in the facts that are going to be repeated in the legal argument, but also are going to catch somebody’sinterest. It may not have much to do with the subtle legal argument, but you want to catch their eyes. Interview byBrian A. Garner with John G. Roberts, Chief Justice of the United States, Washington, D.C. (2006-2007), available athttp://www.lawprose.org.supreme_court.php.15Rhetorical Footnote: enargeia– The special effect of figures that makes an audience believe something is takingplace before their very eyes.
4recreational purposes by limiting the liability of the owner to persons entering the land for thosepurposes.”N.C. Gen. Stat. § 38A-1.A landowner’s only duty owed to a trespasser is to refrainfrom 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).16In the instant case, Walker does allow people to use his land for walking, picnicking, birdwatching and generally enjoying the beautiful scenery.17The statute says that whether Rose wasinvited directly or indirectly onto the property, that he owes her the same duty that he would amere trespasser. Walker did not have, a purposeful intent to injure Rose (willful), act withintentional indifference toward Rose (wanton), nor did he have actual knowledge of the dangerto Rose. As such, the duty of care owed by Walker, according to North Carolina case law, was toavoid willfully or wantonly injuring the youthful trespasser. Walker adhered to theapplicablestandard of care and fulfilled the only duty that was owed, therefore, Walker will likely not beheld liable for Rose’s injuries under statutory law.18Rose’s family probably does not have a cause of action against Walker for negligenceunder the doctrine of attractive nuisance. In order to establish a prima facieclaim for negligenceunder an attractive nuisance theory, a plaintiff must show that (a) the place where the conditionexists is one upon which the possessor knows or has reason to know that children are likely totrespass, and (b) the condition is one of which the possessor knows or has reason to know andwhich he realizes or should realize will involve an unreasonable risk of death or serious bodily16Rhetorical Note: Once again, Aristotle’s love of things that come in threes appears. This is forensic (legal) rhetoricwhich is argument that determines guilt or innocence. Forensic persuasion concerns itself with the things of thepast in order to prove liability. The other two kinds of rhetoric are deliberative (argument about choices and thefuture) and demonstrative (argument that deals with values that bring a group together).17Rhetorical Note: I attempted to try and drag the facts through the case in order to keep the reader invested inthe story.18Rhetorical Note: enthymeme – Rhetoric’s version of a syllogism. The enthymeme stakes a claim and then bases iton commonly accepted opinion. A little package of logic, it can provide protein to an argument.
5harm to such children, and (c) the children because of their youth do not discover the conditionor realize the risk involved in intermeddling with it or in coming within the area made dangerousby it, and (d) the utility to the possessor of maintaining the condition and the burden ofeliminating the danger are slight as compared with the risk to children involved, and (e) thepossessor fails to exercise reasonable care to eliminate the danger or otherwise to protect thechildren.Broadway v. Blythe, 313 N.C. 150 (1985).Rose will likely be able to prove the first element of Restatement (Second) of Torts § 339reads, “A possessor of land is subject to liability for physical harm to children trespassingthereon caused by an artificial condition upon the land if the place where the condition exists isone 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 werechildren nearby and that they would likely play on the large pipes the defendant had delivered toa construction site. 313 N.C. 150 (1985). A Court of Appeals examined North Carolina case lawand decided that the attractive nuisance doctrine was limited to conditions which are not “naturaland obvious.” Leonard v. Lowe’s Home Centers Inc., 131 N.C. App. 304 (1998). Landowner’salterations to their own property are not enough to justify the application of the attractivenuisance doctrine, because such changes may be so “common, obvious, and pervasive to beexempt from the child trespasser doctrine.” Id. at 308.In the instant case, Walker knew or should have known that there was a new housingdevelopment in the area, which would increase the likelihood that children would be at play in,on, or around his property.1919Rhetorical Note: I buried this fact in the middle. I decided to implement the strategy of putting my bad facts inthe middle of the memo in order to lighten their effect on the reader. I thought this was an effective rhetoricalchoice. I wanted to include the bad facts, but not go make them as obvious or apparent to the reader.
6Rose will probably be able to prove that she was injured by an artificial or man-madecondition 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 willinvolve an unreasonable risk of death or serious bodily harm to such children.” Roberson v. Cityof Kinston, 261 N.C. 135 (1964).20Rose will most likely fail to prove the third element of the Restatement which states, “thechildren because of their youth do not discover the condition or realize the risk involved inintermeddling 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 tocertain groups of people the law considers to be unable to conform their acts to the reasonableperson standard. The most common exception is made for children. Children’s aptitude inevaluating risks varies greatly from child to child, based on their age, experience, andintelligence. North Carolina adopts an approach towards children, sometimes referred to as therule of sevens.21An infant under the age of seven is deemed by courts to be irrefutably incapableof unreasonable conduct. From seven to fourteen the child is presumed to be incapable ofunreasonable conduct, however, the presumption may be rebutted by proof that the child in facthad the requisite capacity. Bell v. Page, 271 N.C. 396, 400 (1967).The policy behind attractive nuisance was settled by the North Carolina Supreme Courtin 1908. “We think that the law is sustained upon the theory that the infant who enters uponpremises, having no legal right to do so, either by permission, invitation or license or relation tothe premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childishcuriosity, or in obedience to a childish propensity excited by the character of the structure or20Rhetorical Note: Citations are very important. They give your work instant credibility.21Rhetorical Note: Colloquial phrases also add credibility.
7other conditions, he goes thereon and is injured by the failure of the owner to properly guard orcover the dangerous conditions which he has created, he is liable for such injuries. This we thinksound 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 goesdown as the child’s age increases. The older the child is, the less likely that attractive nuisancewill apply.22The attractive nuisance doctrine was not made available to a “well developed andhealthy” fourteen year old boy who was injured while trying to operate a crane. Dean v. WilsonConstr. 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 followdirections and who being deemed capable of recognizing and appreciating the danger inherent inremoving bricks from a free-standing chimney was not afforded the attractive nuisancedoctrine’s protection when said chimney fell upon and killed him. Griffin v. Woodward, 347N.C. 266 (1997). Again, the doctrine was not made available to an intelligent twelve-year-oldboy who rode his bike across a frozen ice-covered pond, subsequently falling through. Hawkinsv. Houser, 91 N.C. App. 266 (1988). Finally, the doctrine was not made available to an immaturefourteen-year-old who performed poorly in school when he climbed a power tower and wassubsequently electrocuted. Hashtani v. Duke Power Co.,578 F.2d 542 (4th Circuit 1978).23In the case of Walker, Rose is ten years old and is quite precocious, havingapproximately a 134 I.Q. and having been labeled in her school as gifted and talented. According22Rhetorical 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 thePersuasive Brief, 20, 55 WIS.LAW.(Feb. 2003).23Rhetorical Note: I thought that it was a good idea to add a rundown of the case law in order to prove my point.
8to www.reuters.com, the average I.Q. among adults is 100.24Whether or not Rose qualifies forthe attractive nuisance doctrine is certainly a question for a finder of fact, but based on the caselaw, it is highly unlikely that Rose will prevail on this element.Rose will likely succeed in proving that Walker was negligent in not “maintaining thecondition and (because) the burden of eliminating the danger are slight as compared with the riskto children involved.” For Walker to fix a couple of hinges, maintain a working ladder, andremove 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 toexercise reasonable care to eliminate the danger or otherwise to protect the children.” A childwas unable to show that a dumpster was a dangerous instrumentality when it tipped over on herbecause it could not be proven that the dumpster had ever tipped over before. Feagin v Staton, 72N.C. App. 678 (1985). On the other hand, the size of the loose pipes created an unreasonable riskwhen children played on them. Broadway v. Blythe, 313 N.C. 150, 156 (1985). Rose must showthat the condition was one that posed a serious risk to children. It is more likely than not thatRose will be able to satisfy this element, since the barn is where Rose injuries occurred.CONCLUSIONRose’s family is unlikely to prevail in a claim of negligence under the doctrine ofattractive nuisance because the statute is meant to limit Walkers liability. Walker was doingexactly what the statute writers intended him to do; opening up his private property to the publicfor their enjoyment, both recreationally and educationally. In so doing Rose was unfortunatelyinjured, but as the case laws and statute dictate, Rose will not be allowed to recoup for theinjuries she suffered. The North Carolina courts and Congress have adopted the policy that the24Rhetorical Note: I included the average adult I.Q. in order to show how the youngsters I.Q. was much higer thanthe average adult.
9attractive nuisance doctrine is only available to those small children of tender years. Rose willlikely not be able to prove that she belongs within this group because of her above averageintelligence, age, and experience.2525Rhetorical Note: Apparently, I love things that come in threes, just like Aristotle.
10Rhetorical AnalysisI thought that it would be best for this rhetorical analysis to include what certain judgesthought about legal writing.I wanted to allow these judges to critique my work and speak about itwithout me blathering on and on about my decisions. I thought that this technique would addintegrity and credibility to the analysis.These quotes were pulled from articles which were that Ihave 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 penaltyand appeals work.I wanted to include some of the terminology that I have learned over the years before lawschool. I took some rhetoric classes in undergrad. I also studied the over 212 figures of speechthat appear in the old and new testaments of the Bible. I think in the future I will be bolder withthe 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 notmake many changes to this paper because I was pretty happy with the work. I hope that anyonewho reads will agree. I would love to hear any thoughts or feedback that you may have.