1. Negligence (Duty) Flashcards
What is the duty of care?
Defendant has legal duty to act as ordinary, prudent, reasonable person would when engaging in an activity
- Take precautions against creating unreasonable risks of injury
- To foreseeable persons
By preponderance of evidence
Is Defendant liable for injuries to unforeseeable second plaintiff as well as first forseeable plaintiff?
Cardozo view (majority view) (Palsgraf v Long Island)
- P2 must have been in foreseeable ‘zone of danger’
- Reasonable person must have foreseen risk of injury to P2 under such circumstances
Andrews view (minority view) (Palsgraf) - Duty to P1 extends to P2 (everyone is foreseeable)
What is required for Defendant to be liable for injuries to rescuers?
1) D negligently placed P/TP in peril
2) P was injured in attempting a rescue
- NOT reckless rescue
=> P is foreseeable plaintiff
Does Defendant owe duty to police officers/firefighters?
Unlikely (Firefighters’ rule)
- Public policy
- Assumption of risk
What is required for Defendant to be liable for wrongful birth?
1) Viable fetus (at time of injury)
2) Parent sues for;
- Wrongful birth (failure to diagnose defect)
- Wrongful pregnancy (failure to properly perform contraceptive procedure)
=> Parent can recover damages for;
- Unwanted labour (medical expenses, pain and suffering)
- Child’s defect (additional medical expenses, emotional distress)
- NOT health child (NOT child-rearing expenses)
What is required for Defendant to be liable for economic loss to third party?
1) Intended TP to receive economic benefit
- Reasonably foreseeable
2) From legal/business transaction
- Will beneficiary
What is the applicable basic standard of care?
D’s conduct is measured against the reasonable, ordinary, prudent person (objective standard) (Reasonable Prudent Person standard)
- Same physical characteristics
- Same knowledge/experience as average member of community (or must exercise with superior knowledge as superior person would)
What is required for professionals to exercise particular standard of care?
1) Must use superior judgment/skill/knowledge as he actually possesses
2) In good standing in similar community
- National standard
When are doctors liable for failure to disclose risks of treatment?
1) Serious risk
2) If disclosure was made => Reasonable person would have withheld consent to treatment
What is required for children to exercise particular standard of care?
Normal activities (subjective)
- Act as child of like age/experience/education/intelligence
- NOT 5 year old child (NOT likely to be negligent)
Potentially dangerous adult activity
- Adult standard
- E.g. Driving vehicles
What is required for common carriers to exercise particular standard of care?
1) Plaintiff is Passenger
2) Slight negligence (very high standard of care)
What is required for innkeepers to exercise particular standard of care?
1) Plaintiff is Guest
2) Slight negligence (very high standard of care)
What is required for automobile drivers to exercise particular standard of care?
Paying guests
- Ordinary care
Non-paying guests
- Ordinary care (most states)
- Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
What is required for bailor/bailee to exercise particular standard of care?
Bailee’s duty to Bailor
- Modern view: Ordinary standard
- Common law: High standard (sole benefit to Bailee); Low standard (sole benefit to Bailor)
Bailor’s duty to Bailee
- Must inform known defect (sole benefit to Bailee)
- Must inform known/should have known defect (mutual benefit)
What is required for Defendant to exercise particular standard of care in emergencies?
D created emergency
- Act as reasonable person would
- Emergency NOT considered
D did NOT create emergency
- Act as reasonable person would in emergency
What is required for statutory standard of care to replace common law standard of care?
1) P is in protected class of persons
2) Particular harm to be avoided
3) Statute provides criminal penalties
=> Negligence per se;
- Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
- Rebuttable presumption of duty + breach (minority view)
When may compliance with statute excuse violation?
Compliance creates more danger than violation
Compliance is beyond D’s control
When does an owner/occuper of land owe duty to those off his premises?
Artificial conditions
- Unreasonably dangerous
Conduct of persons on premises
- Avoid unreasonable risk of harm to others
NOT natural conditions
When does an owner/occupier of land owe duty to those on his premises?
Trespassers (NO consent)
1) Discovered/Anticipated (NOT undiscovered/’no trespassing’ signs)
2) Warn/Securitise P of concealed, unsafe artificial condition (NOT natural condition)
3) Owner’s knowledge (includes Easement/Licence holders)
4) Risk of death/serious bodily harm
5) Reasonable care (active operations)
Attractive nuisance (duty owed to children)
1) Owner knew/should know dangerous condition (artificial/natural)
2) OWNER knew/should know children frequent in vicinity of condition
3) CHILD did NOT know dangerous condition
4) Likely to cause injury
5) Risk magnitude > Remedy expense (even slight cost)
Licencee (entered premises for P’s benefit)
1) Warn/Securitise P of concealed, unsafe artificial + natural condition (NOT discoverable)
2) Owner’s knowledge
3) Risk of death/serious bodily harm
4) Reasonable care (active operations)
- NO duty to repair/inspect known defects
Invitee (entered premises for D’s benefit (customer)/open to public)
1) Warn/Securitise P of concealed, unsafe artificial + natural condition (NOT discoverable)
2) Owner’s knowledge
3) Risk of death/serious bodily harm
4) Reasonable care (active operations)
5) Duty to reasonably inspect defects (even if not obvious)
Users of recreational land (general public)
1) NO fee
2) Dangerous condition/activity
3) Owner’s failure to warn/guard against condition was ‘wilful + malicious’
When does a lessor of land owe duty to those renting his premises?
1) Warn of existing defects
- Lessor owes duty to Tenant + Guest
- Tenant owes duty to Guest
2) Lessor/Tenant knew/should know of defect
3) Lessor/Tenant knows Tenant/Guest will NOT likely discover defect by reasonable inspection
When does a sellor/vendor of land owe duty to those purchasing his premises?
1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection
What is required for negligent infliction of emotional distress?
1) Negligence
2) Either;
Zone of danger
1) P was within zone of danger
2) P’s physical symptoms
Bystander case
1) P was closely related to TP victim
2) P was present at scene of injury
3) P personally observed/perceived event
4) P’s emotional distress
Special relationship
1) P + D had special relationship (doctor-patient, lawyer-client)
2) D’s negligence had great potential to cause emotional distress
Egregious conduct
1) Mishandling/Erroneous reporting of relative’s corpse/death
2) Emotional distress (NO need for physical harm)
What is required for Defendant to have affirmative duty to act?
(Generally NO duty to act)
Assumption of duty by acting
- D places P in peril => D must undertake to aid P (Reasonable care required)
- Doctor/Nurse must act with ordinary care (NOT gross care) (Good Samaritan statutes)
Placed in peril
- Innocently/Negligently
Special relationship
- Parent to protect Child
- Common carrier/Innkeeper/Shopkeeper to aid or assist patrons
- Places of accommodation to prevent TP harm to guests
TP harm prevention (parent-child/bailor-bailee)
1) D has ability to control TP’s actions
2) D has authority to control TP’s actions
3) D knew/should know TP could cause harm
What is the difference between negligent and intentional infliction of emotional distress?
NIED
- P’s personal observation
- Emotional distress
- Negligence
IIED
- D’s knowledge of P’s presence + close relation
- Severe emotional distress
- Intent/Recklessness
What is required for Defendant to be liable for wrongful life?
1) Viable fetus (at time of injury)
2) Parent sues on behalf of Child for;
- Wrongful birth defect
What is the difference between wrongful birth and wrongful life lawsuits?
Wrongful birth
- Parent sues D
Wrongful life
- Parent sues D on behalf of child
What is the standard of care for doctors?
Average doctor in good standing
- National standard (some states)
- State standard (some states)
