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UBE - Torts > 1. Negligence (Duty) > Flashcards

1. Negligence (Duty) Flashcards

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1
Q

What is the duty of care?

A

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

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2
Q

Is Defendant liable for injuries to unforeseeable second plaintiff as well as first forseeable plaintiff?

A

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)
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3
Q

What is required for Defendant to be liable for injuries to rescuers?

A

1) D negligently placed P/TP in peril

2) P was injured in attempting a rescue
- NOT reckless rescue

=> P is foreseeable plaintiff

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4
Q

Does Defendant owe duty to police officers/firefighters?

A

Unlikely (Firefighters’ rule)

  • Public policy
  • Assumption of risk
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5
Q

What is required for Defendant to be liable for wrongful birth?

A

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)
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6
Q

What is required for Defendant to be liable for economic loss to third party?

A

1) Intended TP to receive economic benefit
- Reasonably foreseeable

2) From legal/business transaction
- Will beneficiary

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7
Q

What is the applicable basic standard of care?

A

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)
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8
Q

What is required for professionals to exercise particular standard of care?

A

1) Must use superior judgment/skill/knowledge as he actually possesses

2) In good standing in similar community
- National standard

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9
Q

When are doctors liable for failure to disclose risks of treatment?

A

1) Serious risk

2) If disclosure was made => Reasonable person would have withheld consent to treatment

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10
Q

What is required for children to exercise particular standard of care?

A

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
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11
Q

What is required for common carriers to exercise particular standard of care?

A

1) Plaintiff is Passenger

2) Slight negligence (very high standard of care)

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12
Q

What is required for innkeepers to exercise particular standard of care?

A

1) Plaintiff is Guest

2) Slight negligence (very high standard of care)

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13
Q

What is required for automobile drivers to exercise particular standard of care?

A

Paying guests
- Ordinary care

Non-paying guests

  • Ordinary care (most states)
  • Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
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14
Q

What is required for bailor/bailee to exercise particular standard of care?

A

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)
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15
Q

What is required for Defendant to exercise particular standard of care in emergencies?

A

D created emergency

  • Act as reasonable person would
  • Emergency NOT considered

D did NOT create emergency
- Act as reasonable person would in emergency

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16
Q

What is required for statutory standard of care to replace common law standard of care?

A

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)
17
Q

When may compliance with statute excuse violation?

A

Compliance creates more danger than violation

Compliance is beyond D’s control

18
Q

When does an owner/occuper of land owe duty to those off his premises?

A

Artificial conditions
- Unreasonably dangerous

Conduct of persons on premises
- Avoid unreasonable risk of harm to others

NOT natural conditions

19
Q

When does an owner/occupier of land owe duty to those on his premises?

A

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’

20
Q

When does a lessor of land owe duty to those renting his premises?

A

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

21
Q

When does a sellor/vendor of land owe duty to those purchasing his premises?

A

1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection

22
Q

What is required for negligent infliction of emotional distress?

A

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)

23
Q

What is required for Defendant to have affirmative duty to act?

A

(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

24
Q

What is the difference between negligent and intentional infliction of emotional distress?

A

NIED

  • P’s personal observation
  • Emotional distress
  • Negligence

IIED

  • D’s knowledge of P’s presence + close relation
  • Severe emotional distress
  • Intent/Recklessness
25
Q

What is required for Defendant to be liable for wrongful life?

A

1) Viable fetus (at time of injury)

2) Parent sues on behalf of Child for;
- Wrongful birth defect

26
Q

What is the difference between wrongful birth and wrongful life lawsuits?

A

Wrongful birth
- Parent sues D

Wrongful life
- Parent sues D on behalf of child

27
Q

What is the standard of care for doctors?

A

Average doctor in good standing

  • National standard (some states)
  • State standard (some states)

UBE - Torts (18 decks)

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