Duty Flashcards
General Duty Rule
The defendant engages in affirmative risk-creating conduct or an omission that leads to personal injury or property damages to any foreseeable plaintiff.
Exceptions to Nonfeasance
Duty to aid/rescue
Duty to warn/control
Duty to protect against criminal conduct
Status-based Duties
Land possessor/landlord
Government/Police
Utility
Duty to Self (Primary Assumption of Risk)
A defendant is not liable for when a plaintiff gets injured due to a risk or danger that is inherent in an activity such as a sport or recreational activity, in which the plaintiff chooses to participate
Firefighter/Professional Rescuer Rule
Firefighters/Police/Professional rescuers cannot sue for injuries sustained as part of their job, even if the conduct that brought them to the rescue was negligent (such as a negligent fire).
*Exception: Does not cover negligence after the rescuer has arrived, such as failure to warn about a known concealed danger
Land Possessor: Jx Split
Status Trichotomy (common law)
Unitary/Modern (CA)
Hybrid
Land Posessor: Duty to those off property
No general duty to those off the land unless it is caused by landlord’s current action
In certain urban areas, trees need to be maintained
Status Trichotomy: Definitions
Invitee: One who enters on land with the owner’s knowledge for the mutual benefit of both OR the property is open to the public
Licensee: One who enters on and with the owner’s consent (express or implied)
Trespasser: On land without permission, lawful authority, invitation, or privilege
Landowner duty: Actions
A landowner must use reasonable care when carrying on actions, regardless of entrant status (except unforeseen trespassers)
Status Trichotomy: Natural v. Artificial Conditions
Invitee: Natural & artificial, all conditions that the landowner knew or should have known about through investigation
Licensee: Natural & Artificial, CONCEALED ONLY that the landowner actually knew about
Trespasser: none
Child Entrant: Artificial only, all conditions that the landowner knew or should have known about through investigation
Frequent/Known Trespasser: Artificial only, CONCEALED ONLY that the landowner actually knew about
Invitee: Definition and SoC
One who enters land with the owner’s knowledge for the mutual benefit of both
SoC
The owner owes a duty of reasonable care (basically RPPSSC)
The owner knows or should have known about the dangerous condition- natural and artificial
The owner must maintain the property, actively discover dangers, and fix or warn about them
Tests to determine invitee status
Economic benefit test: is the person there for business purposes?
Public invitation test: is the place open to the public?
Licensee: Definition and SoC
The person has the express or implied consent of the owner; no dedicated purpose necessary
SoC
Only a duty to not willfully harm, engage in gross negligence, and***
a duty to make safe or warn about known (ACTUAL KNOWLEDGE) concealed/hidden dangerous conditions (artificial and natural)
Trespasser: Definition and SoC
Anyone who enters and remains on land without the express or implied consent of the owner; intent to enter not needed
SoC
not to willfully harm the trespasser or engage in gross negligence
UNLESS
Frequent/Known: duty to warn of or make safe known concealed artificial conditions that involve a risk of death or serious bodily harm
Child entrant: Duty to eliminate danger of all artificial conditions or to protect from
Child Entrant Doctrine
The condition is artificial and
The place where the condition exists is one which the possessor knows or has reason to know children are likely to trespass
AND the condition the possessor knows or has reason to know that the condition will pose an unreasonable risk of death/serious bodily injury to children
AND the children because of their youth do not discover the condition or realize the risk involved
AND the burden of eliminating the danger is slight compared to the risk
AND the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
The Unity Standard (CA)
A land possessor owes every land entrant a duty of reasonable care, regardless of entrant status
The Hybrid Approach (Land Possessor Duty)
Duty of reasonable care to invitees and licensees
BUT normal trespasser rules still apply.
Trespassers: Duty not to willfully harm the trespasser or engage in gross negligence UNLESS
F/KT: duty to warn of or make safe known concealed artificial conditions that involve a risk of death or serious bodily harm
Children: Duty to eliminate danger of all artificial conditions or to protect from
Landlord Duties
Duty of reasonable care to their tenants and their guests for
common areas
negligent repairs
Undisclosed dangerous conditions known (or should have known) to landlord
Landlord’s knowledge that the property will be open to the public
Duty to Aid/Rescue
Applies when
The defendant’s own conduct creates the need to rescue OR
the defendant undertakes to act or causes others not to act
—- SoC becomes a split jx: RPPSSC or not leaving the victim in a worse condition
OR a special relationship
Duty: Special Relationships
Parent/child, hospital/patient, employer/employee, school/student, common carrier/passenger, etc
Automatic duty of reasonable care
The defendant must know or should have known about the other person’s peril
Duty to Warn/Control
There is a special relationship where the defendant has control over or ability to control the person
AND the defendant knew or should have known of the need for control
AND there is a readily identifiable victim*
*Victim to be protected is a jx split
Identability standard: victims that are specifically identified
Foreseeability standard: Victims who are foreseeable, but not specifically named
AND/OR public policy considerations
Rowland Public Policy Factors
- The foreseeability of harm to the plaintiff
- The degree of certainty that the plaintiff suffered injury
- The closeness of the connection between the defendant’s conduct and the injury suffered
- The moral blame attached to the defendant’s conduct
- The policy of preventing future harm
- The extent of the burden to the defendant and the consequences to the community of imposing the duty to exercise care with resulting liability for breach
- The availability, cost, and prevalence of insurance for the risk involved
Duty to Protect Against Criminal Conduct
There is a special relationship between the defendant and the person who needs protection and the criminal occurrence is foreseeable
Duty is to take reasonable affirmative measures to protect from foreseeable criminal conduct
Duty to Protect Against Criminal Conduct Foreseeability Tests
Prior Similar Incidents Test
Totality of the Circumstances Test
Balancing Test (CA)
Public Policy Considerations
Duty to Protect: Prior Similar Incidents Test
Duty is owed if it can be shown that prior similar incidents of crime occurred on or near the defendant’s property such that the crime in question for foreseeable
Court look at number, nature, and location of prior similar incidents
Duty to Protect: Totality of the Circumstances Test
Duty is owed if it can be shown that the totality of the circumstances make the crime foreseeable
Considerations
All events surrounding an event
Property location, nature, and condition
Prior similar incidents
Duty to Protect: Balancing Test (CA)
- Identify the untaken precaution (high, medium, low)
- If it is high (costly/burdensome) look at prior similar circumstances. Less likely to be a duty.
- If it is low (minor), look at totality of the circumstances. More likely to be a duty.
Negligent Entrustment - Elements
The defendant supplies a third party with the chattel in question for the use of the third party
The supplier of the chattel knew or should have known that the third party would use the chattel in a manner involving an unreasonable risk of harm (was the defendant acting reasonably?)
AND that harm resulted from the use of the chattel
Duty of Alcohol Providers
Many states – a commercial alcohol provider cannot serve a visibly intoxicated person or they will be responsible for any harm that person causes to a third party (but not the person themselves)
Duty of Gun Manufacturers
Mostly broad statutory immunity – unless the seller knew or should have known the transaction was illegal
Duty of Police to Act
Generally none, unless there is a special relationship based on the police’s
- Assumption of affirmative duty through promises or action
- Municipality’s knowledge that inaction could lead to harm
- Direct contact between municipality and the injured party AND
- The party’s justifiable reliance on the municipality’s affirmative undertaking
Definition of severe emotional harm (NIED)
A reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances
Types of NIED
Direct
Bystander
NIED - Direct - Tests
Jx split
Impact
Zone of Danger
Independent duty
Foreseeability
NIED - Bystander - Tests
Zone of danger
Dillon/Thing/Clohessy
Foreseeability
Emotional result of NIED (jx split)
Physical manifestations of emotional harm
OR severe emotional distress
NIED - Impact Rule
Requires some form of physical impact but not actual physical harm
NIED - Zone of Danger
Plaintiff (or bystander) were in the direct zone of physical harm, without being injured.
Two types:
Near Miss
Geographic space within which victim is at a foreseeable risk of physical injury
NIED - Independent Duty Test
P is already owed a pre-existing duty and suffers serious emotional distress or physical manifestations (need not be physically injured or at risk of physical injury)
Exists where the duty is
Imposed by law
assumed by the defendant (voluntary assumption of duty)
OR exists under a special/contractual relationship
Examples of NIED Independant Duty
- Medical: A mother is unconscious while giving birth, the doctor injures the baby. Mom is a direct victim (not a bystander because she didn’t see it)
- Wrong transmission of death notification of loved one
- Mishandling of bodily remains
NIED - General Foreseeability Test
Is the risk of harm (emotional distress) to the direct victim or bystander reasonably foreseeable?
Did the plaintiff suffer severe emotional distress?
NIED - Dillon/Thing/Clohessy Test
Bystander had contemporaneous sensory perception of the incident or viewed the victim immediately after if there was no change in their condition or location
Wrongful Conception (definition and damages)
The baby is UNWANTED but healthy.
Damage reductions:
Motivational analysis (Damages are more likely to be awarded if the parents sought to avoid the pregnancy for financial reasons)
Benefit Rule Analysis (May reduce the damage award by the emotional gains of having a healthy child)
Wrongful Birth (Definition and damages)
The baby is WANTED but unhealthy. This about the loss of right to terminate an unhealthy baby.
Damages
the costs associated with the birth defect only
Wrongful Life
The parents are suing on behalf of the child for being born
*most courts refuse to hear this claim
Loss of Consortium - Elements
Victim is not dead but severely injured
Usually only for spouse (***not parents, children, not long term relationships)
Suing for loss of comfort, companionship, affection, sexual relations
Must prove loss of these things from a strong, fulfilling relationship
Survival Actions
The continuation of the action by the deceased plaintiff against the defendant (for the benefit of the deceased’s estate)
Recovery is for any damages that the decedent would have recovered had they lived.
***Note: the deceased P’s death does not have to be caused by the defendant; there is no survival action for instantaneous death, and the death must happen before or during trial
Wrongful Death
Plaintiff is the family member suing for the tortious loss of a family member/loved one. (usually only spouse, parents, and children)
Damages include the replacement of the services provided by the victim (such as monetary support or housekeeping) and loss of companionship
Wrongful Death (medical malpractice)
it must be proven that the patient was at least 51% likely to live after the misdiagnosis (so if the patient died, it was more likely than not that the doctor caused it)
*If less than 51%, use loss of chance
Loss of Chance
Used when the chance of survival was already less than 50%.
The doctor’s misdiagnosis/malpractice caused a diminished likelihood of achieving a more favorable outcome/loss of chance to survive.
The plaintiff’s monetary recovery is proportionate to the chance of recovery the defendant’s negligence destroyed compared to a wrongful death suit.
So if the plaintiff’s chance of survival drops from 40% to 20%, the plaintiff recovers 20% of the cost of a wrongful death suit.
Duty for Pure Economic Loss
None. Unless there was actual damage involved to property.
Duty of Utility Providers
In general, there is no duty owed by a public entity to an individual plaintiff
Duty for government entities
Times when duty could exist:
Ministerial functions
(Maintenance of a government building, building shit, etc)
Proprietary functions
(Not government functions at all, but private corporate activities engaged in by the government.
If the operations are privately engaged in, the public policy rule does not apply and it is treated the same as a private entity so regular duty rules apply (hospital, common carrier, landlord, etc))
Times when it wont: discretionary functions
(Allocating funds, directing resources, etc)
