Affirmative Duties Flashcards
Duty to Rescue
- Only liable if created the danger or special relationship to
- A defendant is not liable unless they owed the plaintiff a legal duty which they neglected to perform
Duty Based on Prior Conduct Creating a Risk of Physical Harm
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type of characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
Duty to Another Based on Taking Charge of the Other
An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position that existed before the actor took charge of the other and, if the other reasonably appears to be an eminent peril or serious physical harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue.
Invitees: Duties of Owners and Occupiers (Common Law)
Business visitor or member of the public
Duty: Exercise reasonable care to make the property safe, including an affirmative duty to make reasonable inspections to discover non-obvious dangers and to warn or make them safe even if there is no knowledge.
Licensees: Duties of Owners and Occupiers (Common Law)
Social guests and others from whom the occupier derives no material benefit
Duty: No duty to inspect or make safe dangerous conditions but must warn or make safe any concealed dangerous conditions of which they have actual knowledge.
Trespassers: Duties of Owners and Occupiers (Common Law)
One on the land without a privilege to be there
Duty: No duty except not to harm by willful or wanton conduct
Artificial Conditions Highly Dangerous to Trespassing Children: Duties of Owners and Occupiers
Liability for landowners for harm to children trespassing caused by artificial conditions upon the land if:
- Knowledge that children are likely to trespass;
- Knowledge that an unreasonable risk is posed;
- Children are unlikely to discover the condition or realize the risk;
- Utilitarian concerns suggest elimination of condition can be realized;
- Possessor fails to exercise reasonable care
Duties of Owners and Occupiers (Modern Law; CA)
Rejecting Tripart Test and “Imposing a single duty of reasonable care in all circumstances”
- a. Foreseeability of the harm
- b. Closeness of connection between defendant’s conduct and plaintiff’s harm
- c. Moral blame attached to defendant’s conduct
- d. Policy of preventing future harm
- e. Extent of burden on defendant and consequences to the community for imposing a duty
- f. Availability, cost, and prevalence of insurance for the risk involved
Duty Based on Gratuitous Undertakings
An actor who undertakes to render services to another that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
- a. The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
- b. The person to whom the services are rendered, or another relies on the actor’s exercising reasonable care in the undertaking
Special Relationships: General Principle
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless:
- a. A special relationship exists between the actor in the third person which imposes a duty upon the actor to control the third party’s conduct, or
- b. A special relation exists between the actor and the other which gives the other a right to protect
Examples of Special Relationships
i. Common carriers and passengers
ii. Innkeepers and guests
iii. Businesses and licensees
iv. Employers and employees
v. Schools and students
vi. Custodian and those in custody
