Situation: You are a member of the staff of a State Senator in your state. There are many lakes and ponds on private land throughout the state. From time to time, children or adults are injured or killed when they fish or swim in such lakes or ponds after having entered without the landowner's permission. In some such instances, the injured person or the family of the deceased person brings a tort suit in state court, claiming that the landowner's failure to take steps to prevent people from entering onto the land to fish or swim was a failure of care, entitling the plaintiff to recover damages for the injury or death. The decisions of the courts have been highly inconsistent. Some courts have held for the plaintiffs. Others have held for the landowners on the ground that the injured or deceased person caused the problem by trespassing onto the property. Your Senator feels strongly about this issue and has asked you to draft a bill (which the Senator will then introduce) to deal with this matter. The bill should prescribe a clear rule to govern future lawsuits of this nature.

Draft the bill and a memorandum to your Senator explaining choices you made in your drafting of the bill.

The contents of the Operative Provisions of the bill are up to you. o Create an absolute rule (never liable or always liable) or a conditional rule (e.g., liable if the premises have certain characteristics, liable if stated precautions are omitted, liable for some stated percentage - not all of -- the damages), etc.

Provide enough detail so that the Operative Provisions are coherent and workable.

You may assume that your Senator supports whichever position you choose to take in the drafted bill.

Provide a rule that the courts can clearly and consistently apply.

A BILL

1. TITLE. An act to clarify the liability of landowners in cases of injury or death of trespassers

Be it enacted by the Legislature of the State of X,

1. LEGISLATIVE FINDINGS/PURPOSE.[Briefly state what the bill will do or require, and what findings the law is based on]

1. OPERATIVE PROVISIONS.[Using clear and concise language, state what your bill will prohibit/permit/mandate.]

(1)

(2)

(3)

(4)

(5)

SCOPE PROVISIONS [As appropriate, state definitions of key terms, exceptions from the operative provisions, transitional rules, and/or effective dates of the legislation]

(1)

(2)

(3)

(4) (5)

PROCEDURAL/ENFORCEMENT PROVISIONS [As appropriate, include provisions discussing how the legislation will be enforced, such as delegation to agencies, judicial remedies, civil or criminal sanctions, and any relevant severability provisions]

(1)

(2)

(3)

(4) (5)