The Case the Draft Memo Left Out: Adverse Authority on Trespasser Duty
Your firm represents Cedar Ridge Storage, LLC, in a premises-liability suit brought by a fourteen-year-old who fell through a skylight opening while cutting across the facility's roof. The associate's draft memo to the partner argues that under Wellman v. Ridgeway (state supreme court, 1987), a landowner owes a trespasser no duty except to refrain from willful or wanton injury. The library contains Wellman; a 2019 Court of Appeals decision, Ortiz v. Harlow Properties, holding that a landowner with actual knowledge of repeated trespass at a specific location owes a duty of reasonable care; a 2021 Court of Appeals decision from a different district, Banks v. Tulley, declining to follow Ortiz; and a 2022 state supreme court order denying review in Banks without opinion. The file contains two emails from the adjoining business to Cedar Ridge's manager reporting 'kids on the roof again' - one in April, one in May - and a work order for roof repairs dated June. The partner asks: 'Give me the honest assessment.'
1. The draft memo cites only Wellman. What must the memo do with Ortiz, and why?
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The memo must address Ortiz directly and cannot rely on Wellman alone. First, an internal memo that omits the one decision recognizing a duty to known trespassers gives the partner a false picture; and any brief the firm files must disclose adverse authority from the controlling court under the rules of professional conduct (Rule 3.3(a)(2)).
Second, the legal move is not to claim that Wellman overrules Ortiz - a 1987 supreme court decision cannot overrule a later intermediate decision; it predates it. The honest argument is that Ortiz announces a narrow exception to Wellman and that the exception's elements are not met. Ortiz requires actual knowledge of repeated trespass at a specific location coupled with a dangerous condition, and the memo should test each element against the two emails rather than assert that Wellman 'controls.'
Third, an assertion that Wellman controls, without mentioning Ortiz, is the kind of statement that invites a sanctions motion or a bench correction at the hearing. The memo should state the client's best case, the likely application, and a candid probability rather than a conclusion.
2. How should the memo use Banks and the supreme court's denial of review?
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Banks is a same-level decision from another district, so it is persuasive, not binding, and the memo should say so rather than implying the court must follow it. Its value is twofold: it evidences a genuine split among panels, which supports a request for en banc reconsideration or certification to the supreme court; and it gives the trial court a reasoned basis to decline Ortiz.
The denial of review in Banks cannot be cited as approving or disapproving anything. Denials are discretionary, and in most jurisdictions they are not citable at all. Characterizing the order as the supreme court 'declining to adopt Ortiz' misstates its effect and would be corrected immediately by opposing counsel.
The memo should also flag the timing problem: Ortiz was decided thirty-two years after Wellman, and the supreme court has since declined review. A court may read that silence as acquiescence in Ortiz. That is an argument to be made carefully, not a fact to be asserted.
3. Identify the file fact that most damages the client and explain how the memo should treat it.
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The two emails from the adjoining business - 'kids on the roof again,' in April and May - are the most damaging documents in the file, because actual knowledge is the first element of the Ortiz exception and the word 'again' supplies repeated trespass. The June work order compounds it: it shows the company knew of a roof hazard and acted only afterward, which is the exact posture Ortiz addresses.
The memo must put these facts in the opening paragraph, not in a footnote after the good news. It should then analyze the remaining elements: whether the roof counts as a 'specific location,' whether the emails identify the same group of trespassers, whether the manager responded at all (a prompt warning or barricade cuts against foreseeability), and whether the open skylight was an obvious danger. The willful-and-wanton argument should be presented as a fallback with an honest estimate that it is unlikely to carry the day on these facts. A memo that reaches a comfortable conclusion by leaving out the two emails is worse than no memo.