6. Specialized Standards of Care

Question 1

Can a child under 5 years old be sued for negligence?

Answer 1

No

Question 2

What standard of care is applicable to children between 5 and 18 years old?

Answer 2

They are required to use the standard of care of children of similar age, experience, and intelligence, acting under similar circumstances.

Question 3

When may a child be held to the Reasonably Prudent Person Standard of care?

Answer 3

If it is engaged in an adult activity. (Often operating a motorized vehicle)

Question 4

What standard of care is used for negligence claims asserted against professionals?

Answer 4

A professional has a duty to exercise the skill and knowledge normally possessed by other members of the same profession in good standing.

Question 5

What is the geographic frame of reference used when determining if a professional adhered to the required standard of care?

Answer 5

MBE: Compare to colleagues nation-wide

NY: Compare with someone of the same or similar locality

Question 6

What added requirement is placed on doctors to meet their applicable standard of care?

Answer 6

They have an obligation to explain the risks of medical procedures before going forward.

Question 7

What exceptions are there to the requirement that doctors explain the risks of medical procedures before going forward?

Answer 7

1. They do not need to explain commonly-known risks

2. The doctor does not need to make the disclosure if the patient is incompetent

Question 8

What duty of care does a possessor of land owe an entrant?

Answer 8

Multi-State Approach: The duty depends on the category of the entrant

New York Approach: Reasonably prudent person standard of care, based on all of the circumstances.

Question 9

What are the four categories of entrants under the Multi-State approach?

Answer 9

1. Undiscovered trespassers
2. Known trespassers
3. Licensees
4. Invitees

Question 10

On the MBE, what standard of care does a possessor of land owe to an undiscovered trespasser?

Answer 10

None

Question 11

On the MBE, what standard of care does a possessor of land owe to a known trespasser?

Answer 11

A duty to protect only from conditions on the property that are:

1. artificial,
2. highly dangerous,
3. concealed from the trespasser, and
4. one that the possessor knew about in advance

Question 12

Artificial Condition

Answer 12

Created by humans

Question 13

Highly Dangerous Condition

Answer 13

Capable of killing or causing severe bodily injury

Question 14

Concealed Condition

Answer 14

The trespasser could not have seen it.

Question 15

On the MBE, what standard of care does a possessor of land owe to a licensee?

Answer 15

A D has a duty to protect them from conditions that are

1. concealed from the licensee, and
2. known in advance by the possessor

Question 16

Licensee

Answer 16

Anyone who comes on the property with the permission of the possessor, but does not confer an economic benefit to the possessor.

Question 17

On the MBE, what standard of care does a possessor of land owe to an invitee?

Answer 17

A possessor owes a duty of care for a condition that is

1. concealed from the invitee, and
2. either known by the possessor, or could have been discovered by a reasonable inspection.

Question 18

Invitee

Answer 18

Someone that enters land with permission, for the purpose of conferring an economic benefit on the possessor, or enters property that is open to the public generally.

Question 19

Most common type of invitee

Answer 19

Customer of a business

Question 20

What is considered a “Reasonable Inspection”

Answer 20

The level of inspection that would be performed by a reasonable possessor.

Question 21

Does a D have to inspect the property every day?

Answer 21

No, just as often as would be considered reasonable

Question 22

What should you remember when dealing with the New York approach to premise liability?

Answer 22

A Reasonably Prudent Person exercises more effort to protect customers than a friend coming over to watch a game, and a friend more than a trespasser. Therefore, the category of the D will be considered as one of the circumstances.

Question 23

What are the two special scenarios for the Multi-State approach to premise liability?

Answer 23

1. Firefighters and Police Officers

2. Child Trespassers

Question 24

What is the Multi-State approach to Firefighters and Police Officers

Answer 24

A firefight or officer cannot recover at all for any injury that is an inherent risk of their job.

Question 25

How does NY view the Firefighter and Police Officer rule?

Answer 25

NY has essentially abolished this rule, but it will bar any lawsuit if the firefighter is trying to sue the fire dept. or a coworker

Question 26

What is the Multi-State approach to Children?

Answer 26

A trespassing child is generally owed the duty of reasonable prudence with regard to any artificial hazards on the land.

Question 27

What two questions must be asked when determining whether to use the Multi-State approach to children?

Answer 27

1. Are children likely to come on the land?

2. Will children be able to protect themselves?

Question 28

Two ways to protect against premise liability

Answer 28

1. Fix the hazardous condition

2. Display or announce a warning (sign, cone, etc.)

Question 29

What effect does a Statutory Standard of care have on a jury?

Answer 29

It takes away the jury’s evaluation function — They simply become a fact-finder.

Question 30

When can the Plaintiff borrow the criminal statute and use it as the Standard of care?

Answer 30

The P must be able to demonstrate:

1. That he is a member of the class of persons that the statute is trying to protect, and
2. That the accident that occurred is in the class of risks that the statute is trying to prevent.

Question 31

What is the NY Distinction for Statutory Standards of Care?

Answer 31

In NY, you can borrow state statutes, but local ordinances, and state regulations will not become the standard of care.

Question 32

What exception(s) are there for using Statutory Standards of care?

Answer 32

1. If compliance with a statute would be more dangerous than violation, it will not be used as the standard for care.
2. If compliance was impossible under the circumstances.

Question 33

Is there an obligation to rescue someone in peril?

Answer 33

No

Question 34

When might there be an obligation to rescue someone in peril?

Answer 34

1. If there is a pre-existing relationship between the P and D, that can trigger a duty.
2. If the D caused the peril

Question 35

What duty do you owe if there is an exception to the general rule that you do not need to affirmatively act?

Answer 35

If either of these exceptions apply, the duty is to act reasonably under the circumstances. They are not under a duty to rescue.

Question 36

What happens if you are not under a duty, and neither exception applies, but you decide to act out of the kindness of your heart, and you make a mistake which causes harm?

Answer 36

You will be liable for that harm, unless there is a good Samaritan law in place, which there is in NY.

Question 37

Negligent Infliction of Emotional Distress

Answer 37

The D behaves negligently, and the act does not cause any physical trauma to the P’s body, but it leaves the P upset.

Question 38

What should you do first in a case of Negligent Infliction of Emotional Distress?

Answer 38

Determine whether the D acted negligently under one of the other standards of care

Question 39

What are the three kinds of Negligent Infliction of Emotional Distress case?

Answer 39

1. Near-Miss
2. Bystander
3. Relationship

Question 40

Near Miss Case

Answer 40

D’s negligent act does not cause trauma to the P, but it came very close

Question 41

Element of a Near Miss Case

Answer 41

P Must prove that:

1. the negligent conduct placed him in a zone of physical danger, and
2. that he suffered subsequent physical manifestations

Question 42

Subsequent Physical Manifestations

Answer 42

There was a consequence that was observable and measurable (Ex: Heart attack, miscarriage, rash, etc.)

Question 43

Bystander Case

Answer 43

The negligent D actually injures or kills a third party, and as a consequence, the P is upset.

Question 44

Elements of a Bystander Case

Answer 44

P must prove that:

1. he and X were close family members (usually spouse, parent, child) and
2. P must have seen the injury as it happened

Question 45

Difference between emotion in Near Miss and Bystander cases

Answer 45

Near Miss = Fear

Bystander = Sadness

Question 46

NY Distinction for Bystander cases

Answer 46

In NY, the bystander must have been close enough to have been in immediate physical danger.

Question 47

Relationship Case

Answer 47

Arrises out of a business relationship, where it is highly foreseeable that careless performance will cause distress.