Torts 3 (Negligence: Duty, Breach)

Front 1

Who is owed a duty of care?

Back 1

Duty owed to ALL foreseeable Ps.

Cardozo View: RP would have foreseen a risk of injury to her under the circumstances, ie she was located in the foreseeable ZONE OF DANGER.

Andrews View: Everyone is foreseeable. P shows that D breached a duty owed to P1 so P2 is extending duty.

Front 2

What are the elements for negligence?

Back 2

1. Duty on part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
2. A breach of that duty by D
3. The breach is the actual and proximate cause of P's injury
4. Damages

Front 3

When is a rescuer a foreseeable P?

Back 3

A rescuer is a foreseeable P where D negligently put himself or a third person in peril. Firefighters/police are barred from recovery by the "firefighters" rule.

Front 4

When is a duty of care owed to a viable fetus?

Back 4

In failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may recover from wrongful birth or wrongful pregnancy but NOT wrongful life. Only add'l med expses and for pain and suffering from labor and not ordinary child rearing expenses, can be recovered.

Front 5

What is the standard of care owed to all foreseeable Ps?

Back 5

Objective standard of a RPP.

1. Physical characteristics same as D.
- but should know physical handicaps and D is under duty to exercise care of a person with such knowledge of

2. Average mental ability
- D's mental deficiences and inexperience are not taken into account

3. Same knowledge as average member of the community
- average shortcomings of that D are NOT considered

Front 6

What people are held to a different standard of conduct different from that of the ordinary person?

Back 6

1. PROFESSIONALS
2. CHILDREN
3. COMMON CARRIERS/INNKEEPERS
4. AUTOMOBILE DRIVER TO GUEST
5. BAILOR/BAILEE

Front 7

What standard of care do professionals have?

Back 7

- A professional who has special skills is required to possess and exercise knowledge and skill of a member of the profess or occupation in good standing in similar communities.
- Must use superior judgment, skill and knowledge.
- For medical specialists, a "NATIONAL" standard of care applies.
- have a duty to disclose risks of treatment to enable the patient to make an INFORMED CONSENT to the treatment.

Front 8

What standard of care for children?

Back 8

- like age, education, intelligence and experience (SUBJECTIVE)
- Min age? Each different, but most courts would have view a child under 4 to have capacity to be negligent.
- Children engaged in adult activies should conform to same standard of care as adult in such activity

Front 9

What standard of care for common carriers/innkeepers?

Back 9

Very high degree of care toward their passengers and guests. They are liable for slight negligence.

Front 10

What standard of care for automobile drive to guest?

Back 10

Most jxn's, it is ordinary care.

A few states have guest statutes which state the only duty of driver to a NONPYAING rider is to refrain from gross or wanton and willful mosconduct. Guest statutes do not apply to passengers who contribute to expense of ride--they are owed duty of ordinary care.

Front 11

What duties are owed by a bailee?

Back 11

1. Sole benefit of bailor - gross negligence
2. Sole benefit of bailee - slight negligence
3. Mututal benefit - ordinary due care

MODERN TREND
Away from such classifications and toward a rule that considers whether the bailee exercised ordinary care under all circumstances.

Front 12

What duties are owed by bailor?

Back 12

1. Sole benefit of bailee - need only inform bailee of known dangerous defects in chattel. No duty to unknown defects.
2. Bailment for hire - bailor owes a duty to inform the bailee of defects known to him, or of which he would have known by the exercise of reasonable diligence.

Front 13

What is the duty of landowners to those off premises???

Back 13

1. Natural Conditions (bugs)
NO duty but exception for decaying trees next to sidewalks or streets in urban areas.

2. Artifical Conditions
NO duty with TWO exceptions
1) Unreasonably dangerous conditions abutting adjacent land
ex: put water off roof that drained onto sidewalk to form ice but not natural ice
2) Duty to protect passerby with due precausions

3. Persons on Property
REASONABLE CARE with his own activities and conduct of those on property

Front 14

What is the landowner's duty of care to those on premises??

Back 14

1. Undiscovered trespasser
- NO duty
2. Discovered trespasser
- Ordinary care to warn/make safe artifical conditions known to landowner that involve risk of death/serious harm; NO duty for natural and less dangerous artifical conditions
- "discovered" when owner is notified by information suffficient for a RP to conclude someone is on propery
3. Anticipated Trespasser
- majority same as discovered trespassers
- "anticipated" where landowner knows or should reasonable know of the presence of trespassers who constantly cross a section of his land

Front 15

What must a P prove to assess a specialy duty upon the owner in regard to artificial conditions and children on his property?

Back 15

P must prove:

1. There is a dangerous condition present on the land of which the owner is or should be aware.
2. Owner knows or should know that young persons frequent the vicinity of this dangerous condition
3. The condition is likely to cause injury, ie is dangerous, b/c of the child's inability to appreciate the risk.
4. The expense of remedying the situation is slight compared with the magnitude of the risk.

NOTES:
- Bodies of water usually are not dangerous conditions b/c danger is obvious and well known UNLESS there are logs in water, thick scum, etc.
- No longer case that the attractive nuisance is what lured child onto property; foreseeability of harm is true basis of liability.

Front 16

What is the duty of care of easement and license holders to Trespassers?

Back 16

Employees/contractors acting on behalf of landowner have status of landowner, but persons with an easement or license to use land do not--they must exercise reasonable care.

EX: cable compandy asked Bob to run high tension wires across Bob's land; undiscovered trespasser is injured when one of the wires is maintained negligently and falls on P. Cable company is liable to P.

Front 17

What duty is owed by a landowner to a licensee?

Back 17

Licensee is one who enters on the land with the landowner's permission, express or implied, for her OWN PURPOSE OR BUSINESS rather than for the landowner's benefit.

DUTY TO WARN of known dangerous conditions.
DUTY TO EXERCISE REASONABLE CARE for active operations.
NO DUTY TO INSPECT for defects nor to repair known defects.

NOTE: Social guests are licensees!!!!

Front 18

What duty is owed by a landowner to users of recreational land?

Back 18

If landowner doesn't charge a fee for general use of his land for recreational purposes, he is not liable for injuries suffered by a recreational user, unless landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Front 19

What duty does a lessee and lessor have regarding conditions on the property?

Back 19

LESSEE:
General duty to maintain the premises.

LESSOR:
Duty to warn of existing defects he knows or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

If lessor convenants to repair, he is liable for unreasonable dangerous conditions.
If the lessor volunteers to repair and does so negligently, he is liable.

Front 20

What duty does a vendor of realty have?

Back 20

DUTY TO DISCLOSE concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and not likely to discover on reasonable inspection.

Front 21

What are the exceptions to the no affirmative duty to act for the benefit of others? (ie couch potato rule)

Back 21

1. Assumption of duty to act by acting -- RPP; except "Good Samaritan" Statutes exempting docs, nurses and ANYONE who has voluntarily and gratuitously rendered aid but only from ORDINARY negligence, not GROSS NEG.
2. Peril due to D's conduct -- Reasonable care.
3. Special Relationship between parties -- 1. Common Carriers 2. Duty of places of accomondation
4. Role of Contract in creating duty -- Nonfeasance (no duty) and Misfeasance (Due Care)
5. Duty to control third persons

Front 22

How does P prove breach by D?

Back 22

1. Must show what in fact happend (direct or circumstantial evidence).
2. Must be shown from these facts that the D acted UNREASONABLY.
- Custom/Usage (to show standard of care, but not dispositive of negligence)
- NPS
- Res Ipsa Loquitur

Front 23

What must P prove breach of duty by RIL?

Back 23

1. Inference of Negligence: P must establish that the accident causing injury is the type that would not normally occur unless someone was negligent.
2. Negligence Attributable to D: Within exclusive control of D
- Multiple Defendants USUALLY is bar to RIL being used to establish breach in negligence claim
3. P must establish that injury was NOT attributable to him, and can do so by own testimony.

EFFECT OF RIL???
If proven, then no directed verdict for D
If NOT proven, then directed verdict for D.

Front 24

What duty is owed by landowner to an invitee??

Back 24

Invitee is a person who enters the premises in response to an express or implied invitation of the landowner-- either because land is HELD OPEN TO PUBLIC (museums, churches, etc) or they have purpose CONNECTED WITH THE BUSINESS or other interests of the landowner or occupier (store customers and persons accompanying them, employees, etc).

DUTY TO WARN of known dangerous conditions.
DUTY TO INSPECT to discover nonobvious dangerous conditions.
DUTY of REASONABLE CARE for active operations.

Basically, licensee status + duty to inspect.
Invitee will lose status if he exceeds scope of invitation.
Entrant serving some purpose of landowner or who comes under normal circumstances during working hours = invitee

Front 25

What is the duties of lessor and lessee?

Back 25

Lessee: General duty to maintain premises.

Lessor: Duty to warn of existing defects of which knows or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

NOTE: If lessor covenants to repair, he is liable for unreasonable dangerous conditions. If lessor volunteers to repair and does so negligently, he is liable.

Front 26

When does violation of a statute replace a general CL duty of care??? NEGLIGENCE PER SE

Back 26

1. Statute provides for a CRIMINAL PENALTY
2. Statute CLEARLY DEFINES THE STANDARD of conduct
3. P is WITHIN PROTECTED CLASS
4. Statute was designed to PREVENT TYPE OF HARM SUFFERED BY P

EXCEPT:
- violation of some statutes is excused where compliance would cause more danger than violation or where compliance would go beyond D's control.


MAJORITY:
Violation = conclusive presumption of duty AND breach.
MINORITY:
Rebuttable presumption of duty and breach OR violation is only prima facie EVIDENCE of negligence.

NOTE: Compliance with statute not necessarily establishes DUE CARE.

Front 27

What must a P prove to establish breach of duty for NIED????

Back 27

1. P must be within ZONE OF DANGER, P must show her distress has been cause dby a threat of physical impact.

2. P must suffer PHYSICAL SYMPTOMS from the distress.

EXCEPT:

BYSTANDER OUTSIDE ZONE OF DANGER IF:
1. P and person injured by D are CLOSELY RELATED.
2. P was PRESENT at scene of injury
3. P personally OBSERVED/PERCEIVED the event.

SPECIAL REL:
D may be liable when a duty arises from the relationshuip b/t P and D, ie doc's misdiagnosis that patient has terminal illness.

Front 28

What are exceptions to the no affirmative duty to act rule? "Couch potato rule"

Back 28

1. Assumption of Duty by Acting EXCEPT those exempted by Good Samaritan statutes.
2. Peril Due to D's conduct
3. Special Relationship b/t the Parties
- Common Carriers
- Innkeepers
- Shopkeepers
4. Duty to Control Third Persons IF one has the actual ability AND authority to control a person's actions.