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Bar Torts > 11) Neg - Duty > Flashcards

11) Neg - Duty Flashcards

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1
Q

duty: rule

A

when D is engaged in affirmative, risk creating conduct causing PI or property damage, a duty is owed to any foreseeable P

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2
Q

duty: times there might not be one

A

1) unforeseeable P
2) nonfeasance (failure to act)
3) harm other than PI or property damage
4) D is a land possessor/LL, utility, or gvt agency

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3
Q

unforeseeable Ps: rule

A

D owes duty only to foreseeable Ps

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4
Q

unforeseeable Ps: exception

A

rescuers

rescuers are always treated as foreseeable Ps – there IS a duty to a rescuer

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5
Q

nonfeasance: rule

A

no obligation to intervene to confer a benefit on another

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6
Q

nonfeasance: things you generally have no duty to do

A

1) rescue
2) control or warn others
3) protect against 3rd party crim conduct

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7
Q

nonfeasance: exception

A

misfeasance

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8
Q

misfeasance: kinds

A

1) affirmative risk-creating conduct

2) negligent omission

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9
Q

negligent omission: def

A

failure to do something a RP would do, that creates affirmative risk of harm (ex. failure to stop at stop sign)

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10
Q

no duty to rescue: exceptions

A

1) D’s tortious conduct creates the need to rescue
2) undertaking to act
3) special relationship of dependence or mutual dependence

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11
Q

no duty to rescue: exceptions: result

A

IF an exception applies, must take reasonable steps to rescue

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12
Q

undertaking to act: rule

A

(generally no obligation to rescue) but once D undertakes to rescue, must either:
1) not leave P in worse position or
2) must act reasonably
(depends on j)

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13
Q

good samaritan statutes: rule

A

if you rescue others, but do something negligent during the rescue, you are not liable (would need gross negligence, recklessness, willfulness)

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14
Q

no duty to rescue: special relationship: examples

A 
parent/child
common carrier/passenger
inkeeper/guest
captain/ppl on boat
store owner/patron
drinking buddies (stretch)
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15
Q

duty to control or warn: rule

A

there is no duty to control or warn about the conduct of a 3rd person to prevent him from causing physical harm to another

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16
Q

duty to control or warn: exceptions

A

1) special relationships

2) providers of alcohol (kinda)

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17
Q

duty to control or warn: exceptions: spl rships: kinds

A

1) spl rship exists between harm-causer and third person that imposes a duty upon the actor to CONTROL the 3rd person’s conduct (D takes charge or control over the person w knowledge of their dangerousness)

OR

2) spl rship btwn actor and other person gives the other person RIGHT OF PROTECTION

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18
Q

duty to control or warn: exceptions: spl rships: control: examples

A

prisons
parents
psychotherapists

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19
Q

duty to control or warn: exceptions: providers of alcohol: traditional rule

A

social host or commercial establishment that provided alcohol to someone who then drove and injured a third party had NO DUTY to the 3rd party

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20
Q

duty to control or warn: exceptions: providers of alcohol: dram shop acts

A

(can be from courts)
impose LIABILITY on commercial establishments and/or social hosts who provide alcohol to someone they (should) know to be intoxicated, when that person drives and harms a 3rd party

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21
Q

negligent entrustment: rule

A

if D gives a dangerous instrumentality to someone he (should know is) not competent to handle it, then duty is owed any foreseeable P

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22
Q

negligent entrustment: conceptual fit

A

form of misfeasance – not an exception bc not really nonfeasance at all

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23
Q

duty to protect against 3rd party crim conduct: rule

A

generally no duty!

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24
Q

duty to protect against 3rd party crim conduct: exceptions

A

spl rship will trigger a duty

SOME Js: also need high level of foreseeability of 3rd party crim conduct, established by prior similar incidents of that crim conduct

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25
Q

duty to protect against 3rd party crim conduct: spl rship: exs

A

LL/T
business/invitee
common carrier

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26
Q

D is gvt agency: duty rule

A

whether D owes duty to P depends on function gvt is fulfilling that gives rise to the COA

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27
Q

D is gvt agency: functions: kinds

A

1) proprietarty
2) discretionary
3) ministerial

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28
Q

D is gvt: proprietary function: def

A

gvt is acting in an area traditionally occupied by private enterprise (hospitals, LL)

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29
Q

D is gvt: proprietary function: rule

A

gvt owes a duty the same way any private actor would

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30
Q

D is gvt: discretionary function: def

A

where gvt is engaging in planning, judgment, resource allocation

31
Q

D is gvt: discretionary function: rule

A

courts WILL NOT impose a duty on the gvt (sep. powers)

32
Q

D is gvt: ministerial function: def

A

gvt previously made the policy decision and now is carrying it out

33
Q

D is gvt: ministerial function: rule

A

YES duty – once gvt has undertaken to act, it must do so non-negligently (pretty micro–installing the stop sign, etc)
(exception)

34
Q

D is gvt: ministerial function: exception

A

public duty doctrine/police

35
Q

public duty doctrine: def

A

when gvt agency (police/fire) sued for failing to rpovide adequate response, NO DUTY to that indiv
(exceptions)

36
Q

public duty doctrine: exceptions

A

1) spl rship btwn P and agency (ex. they promised to notify when D released from prison)
2) agency has increased danger beyond what would otherwise exist

37
Q

duty rue: D is a utility

A

only has duty to those who are in contractual rship w the utility (rate payers)

38
Q

issues where P’s injury is not PI or property damages, so duty issues arise: kinds

A

1) NIED

2) wrongful conception/birth/life

39
Q

NIED: situations where can arise

A

(duty generally limited, so there are special rules)

1) pain + suffering damages (kinda)
2) direct action
3) bystander action

40
Q

NIED: pain + suffering: def

A

where D’s neglince caused PI and THAT in turn caused ED, it’s allowed as part of “pain and suffering” damages

conceptually a little different bc P+S damages not a problem

41
Q

NIED: direct actions: rule

A

(majority rule):

1) P must have been in ZONE OF DANGER, AND
2) must have PHYSICAL manifestation of ED

42
Q

NIED: zone of danger: def

A

area in which you were at risk of suffering physical harm

43
Q

NIED: direct action: exceptions

A

(these are so bad that you don’t need zone of danger or physical manifestation to recover)

1) D negligently transmits (telegram) announcing death of loved one or
2) D negligently mishandles corpse

44
Q

NIED: direct actions; minority rule

A

NIED can recover w/o ZoD or physical manifestation IF D had a preexisting duty to P

45
Q

NIED: bystander actions: majority rule

A

in most js, can recover even w/o ZoD/physical, if:

1) located near scene of accident +
2) suffered severe ED +
3) had close rship w V

46
Q

wrongful babies: related concept

A

straight up med mal: baby born w injury can sue dr for the injury, no spl duty issues

47
Q

wrongful babies: kinds

A

1) conception
2) birth
3) life

48
Q

wrongful conception: def

A

birth of healthy but unwanted child (negligently performed sterilization)

49
Q

wrongful conception: rule

A

usually can get birth-related expenses only (and fixing the sterilization) (not more)

50
Q

wrongful birth: def

A

wanted but unhealthy child (pregnancy would have been terminated)

51
Q

wrongful birth: rule

A

some js: don’t recognize this coa

in js that do, sometimes will award costs of haginv child w spl needs

but may offset by benefit from having a child

52
Q

wrongful life: def

A

CHILD’s action for injury of being born unhealthy

53
Q

wrongful life: result

A

courts do not permit recovery [would put you in former position –> nonexistence?]

54
Q

land possessor liability: who is D?

A

could be land owner, tenant, possessor

55
Q

land possessor liability :3 scenarios:

A

1) P enters the land
2) P is near the land
3) LL liability

56
Q

LPL: enter the land: 3 kinds

A

1) invitee
2) licensee
3) trespasser

57
Q

LPL: kind of entrant: ojo!

A

can change even while you’re still there! (going into an unauthorized part of the house, etc)

58
Q

invitee: def

A

1) D’s express or implied invitation AND

2) either enters to potentially confer an economic benefit on LP, OR land is held open to the public at large

59
Q

invitee: rule

A

LP has duty of REASONABLE CARE to prevent injuries to invitees (DUTY TO INSPECT + MAKE SAFE)

60
Q

licensee: def

A

1) express or implied permission AND

2) NO potential economic benefit + NOT open to the public at large

61
Q

social guest is a

A

licensee

62
Q

licensee: rule

A

land possessor must warn licensee of
known + concealed
dangers on the property

no duty to search out dangers

RC duty re the activities if doing activity on the land

63
Q

trespasser: def

A

no implied/express permission to enter the land

64
Q

trespasser: rule

A

only duty on LP is not to inflict willful or wanton harm

65
Q

trespasser: exceptions

A

1) known or frequent t.

2) child t.

66
Q

LP: different rule!

A

activities on the land

67
Q

activities on the land: rule

A

if D is engaged in an ACTIVITY on their land, then duty of reasonable care due to every land entrant except trespassers

68
Q

known or frequent trespassers: rule

A

if known or frequent t., LP must warn of a danger on the land, if the danger is:

1) known AND
2) concealed AND
3) artificial

69
Q

child trespasser: rule

A

IF the conditions/factors apply, then the child will be treated like an invitee

70
Q

child trespasser: def factors

A

1) children too young to appreciate the danger?
2) foreseeable that kids would trespass?
3) D knows of dangerous condition?
4) artificial condition?
5) risk is so great that it outweighs utility and burden on D?

71
Q

LP land entrants: minority rule

A

apply standard of RC to all land entrants

72
Q

LP: P is adjacent to the land: rule

A

1) if artificial condition on land: duty of RC

2) if natural condition: no duty (exception)

73
Q

LP: adjacent: natural condition: exception

A

tree in urban area

74
Q

LL liability: rule

A

LL does not have a duty, except in these 4 circs:

1) common area over which LL retains control
2) negligent repairs
3) LL actually knows of concealed dangerous condition (at time of leasing)
4) LL knows that T is going to hold property open to the public at large

Bar Torts (20 decks)

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