11) Neg - Duty Flashcards
duty: rule
when D is engaged in affirmative, risk creating conduct causing PI or property damage, a duty is owed to any foreseeable P
duty: times there might not be one
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
unforeseeable Ps: rule
D owes duty only to foreseeable Ps
unforeseeable Ps: exception
rescuers
rescuers are always treated as foreseeable Ps – there IS a duty to a rescuer
nonfeasance: rule
no obligation to intervene to confer a benefit on another
nonfeasance: things you generally have no duty to do
1) rescue
2) control or warn others
3) protect against 3rd party crim conduct
nonfeasance: exception
misfeasance
misfeasance: kinds
1) affirmative risk-creating conduct
2) negligent omission
negligent omission: def
failure to do something a RP would do, that creates affirmative risk of harm (ex. failure to stop at stop sign)
no duty to rescue: exceptions
1) D’s tortious conduct creates the need to rescue
2) undertaking to act
3) special relationship of dependence or mutual dependence
no duty to rescue: exceptions: result
IF an exception applies, must take reasonable steps to rescue
undertaking to act: rule
(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)
good samaritan statutes: rule
if you rescue others, but do something negligent during the rescue, you are not liable (would need gross negligence, recklessness, willfulness)
no duty to rescue: special relationship: examples
parent/child common carrier/passenger inkeeper/guest captain/ppl on boat store owner/patron drinking buddies (stretch)
duty to control or warn: rule
there is no duty to control or warn about the conduct of a 3rd person to prevent him from causing physical harm to another
duty to control or warn: exceptions
1) special relationships
2) providers of alcohol (kinda)
duty to control or warn: exceptions: spl rships: kinds
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
duty to control or warn: exceptions: spl rships: control: examples
prisons
parents
psychotherapists
duty to control or warn: exceptions: providers of alcohol: traditional rule
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
duty to control or warn: exceptions: providers of alcohol: dram shop acts
(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
negligent entrustment: rule
if D gives a dangerous instrumentality to someone he (should know is) not competent to handle it, then duty is owed any foreseeable P
negligent entrustment: conceptual fit
form of misfeasance – not an exception bc not really nonfeasance at all
duty to protect against 3rd party crim conduct: rule
generally no duty!
duty to protect against 3rd party crim conduct: exceptions
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
duty to protect against 3rd party crim conduct: spl rship: exs
LL/T
business/invitee
common carrier
D is gvt agency: duty rule
whether D owes duty to P depends on function gvt is fulfilling that gives rise to the COA
D is gvt agency: functions: kinds
1) proprietarty
2) discretionary
3) ministerial
D is gvt: proprietary function: def
gvt is acting in an area traditionally occupied by private enterprise (hospitals, LL)
D is gvt: proprietary function: rule
gvt owes a duty the same way any private actor would
D is gvt: discretionary function: def
where gvt is engaging in planning, judgment, resource allocation
D is gvt: discretionary function: rule
courts WILL NOT impose a duty on the gvt (sep. powers)
D is gvt: ministerial function: def
gvt previously made the policy decision and now is carrying it out
D is gvt: ministerial function: rule
YES duty – once gvt has undertaken to act, it must do so non-negligently (pretty micro–installing the stop sign, etc)
(exception)
D is gvt: ministerial function: exception
public duty doctrine/police
public duty doctrine: def
when gvt agency (police/fire) sued for failing to rpovide adequate response, NO DUTY to that indiv
(exceptions)
public duty doctrine: exceptions
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
duty rue: D is a utility
only has duty to those who are in contractual rship w the utility (rate payers)
issues where P’s injury is not PI or property damages, so duty issues arise: kinds
1) NIED
2) wrongful conception/birth/life
NIED: situations where can arise
(duty generally limited, so there are special rules)
1) pain + suffering damages (kinda)
2) direct action
3) bystander action
NIED: pain + suffering: def
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
NIED: direct actions: rule
(majority rule):
1) P must have been in ZONE OF DANGER, AND
2) must have PHYSICAL manifestation of ED
NIED: zone of danger: def
area in which you were at risk of suffering physical harm
NIED: direct action: exceptions
(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
NIED: direct actions; minority rule
NIED can recover w/o ZoD or physical manifestation IF D had a preexisting duty to P
NIED: bystander actions: majority rule
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
wrongful babies: related concept
straight up med mal: baby born w injury can sue dr for the injury, no spl duty issues
wrongful babies: kinds
1) conception
2) birth
3) life
wrongful conception: def
birth of healthy but unwanted child (negligently performed sterilization)
wrongful conception: rule
usually can get birth-related expenses only (and fixing the sterilization) (not more)
wrongful birth: def
wanted but unhealthy child (pregnancy would have been terminated)
wrongful birth: rule
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
wrongful life: def
CHILD’s action for injury of being born unhealthy
wrongful life: result
courts do not permit recovery [would put you in former position –> nonexistence?]
land possessor liability: who is D?
could be land owner, tenant, possessor
land possessor liability :3 scenarios:
1) P enters the land
2) P is near the land
3) LL liability
LPL: enter the land: 3 kinds
1) invitee
2) licensee
3) trespasser
LPL: kind of entrant: ojo!
can change even while you’re still there! (going into an unauthorized part of the house, etc)
invitee: def
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
invitee: rule
LP has duty of REASONABLE CARE to prevent injuries to invitees (DUTY TO INSPECT + MAKE SAFE)
licensee: def
1) express or implied permission AND
2) NO potential economic benefit + NOT open to the public at large
social guest is a
licensee
licensee: rule
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
trespasser: def
no implied/express permission to enter the land
trespasser: rule
only duty on LP is not to inflict willful or wanton harm
trespasser: exceptions
1) known or frequent t.
2) child t.
LP: different rule!
activities on the land
activities on the land: rule
if D is engaged in an ACTIVITY on their land, then duty of reasonable care due to every land entrant except trespassers
known or frequent trespassers: rule
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
child trespasser: rule
IF the conditions/factors apply, then the child will be treated like an invitee
child trespasser: def factors
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?
LP land entrants: minority rule
apply standard of RC to all land entrants
LP: P is adjacent to the land: rule
1) if artificial condition on land: duty of RC
2) if natural condition: no duty (exception)
LP: adjacent: natural condition: exception
tree in urban area
LL liability: rule
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
