Duty

Question 1

No Duty to act rule exceptions

Answer 1

(1) d created a peril that endangered p
(2) d started to act in an attempt to aid P
(3) a special relationship between p and d

Question 2

3 categories for entrants of land

Answer 2

(1) Trespassers- enter land w/o permission of its owner, and w/o protection of privilege
(2) Licensee-guests/ salesmen
*No obligation to make safe
*known concealed dangers
(3) Invitee- financial benefit to LO
* business and public

Question 3

3rd Restatement Approach on Duty

Answer 3

(1)imposing liability would conflict w/ social norms
(2) imposing liability conflicts w/ another domain of law
(3) inappropriate b/c of relation b/t parties
(4) would force courts to address claims that would be difficult to adjudicate
(5) would interfere w/ another govt branch

Question 4

Bystanders Duty

Answer 4

Bystanders don’t have a legal duty.
(1) it would be difficult defining their duty if it was imposed
(2) which bystander would have a duty

Question 5

Duty

Answer 5

Duty owed to everyone once you are acting to create a risk.
(1) to whom
(2) to do

Question 6

Palsgraf Approach to Duty

Answer 6

owes a duty to foreseeable victims with respect to foreseeable harms

Question 7

Trespasser
Protection

Answer 7

LO may not wanton+wilful harms Trespasser.
Duty to warn about concealed traps

Modern: Known or Anticipated Trespasser
Must warn about non-evident artificial features that pose a grave danger
If can anticipate trespasser than
(1) Make a sign
(2) Make condition safe
(3) Modify the condition to make it evident

Question 8

Licensees
Protection

Answer 8

No obligation to make Prop safe
LO must warn of Known Concealed Dangers
Must warn of Nat’l and Artificial Danger
No obligation to inspect land
KC Dude

Question 9

Invitee
Protecction

Answer 9

Reasonable Care in Maintaining Property
(Hand formula)
Certain Circumstances require making inspections
Business and Public Invitees

Question 10

Distinctions b/t Trespassers, Invitees and Licensees

Answer 10

Unlike for trespassers, licensees must be warned of natural and artificial dangers

Unlike for trespassers, a danger need not pose a risk of grave harm or death to trigger the duty to warn licensees and invitees;

If a licensee should be able to spot a danger b/c it is open and obvious, then it’s not concealed, and no duty to warn applies; and
there is no duty owed to licensees to make the property safe–warning is enough

Question 11

Exemption from Liability to Recreational User
(recreational use statutes)

Answer 11

Public invited to the property for recreational purposes
- preventing claims except where LO act in reckless or Wanton and Willful Fashion

Question 12

Child Trespassers

Answer 12

-Attractive Nuisance Doctrine
Old rule: Lured onto property by an attractive nuisance was owed a duty of reasonable care
- Owner obligation to go beyond signposting and also put up fences.

New Rule: Moved away from Lured and now its “enough for the LO to know that children would be likely to trespass onto the property as a result of the attractive nuisance”

The rule typically does not apply when trespassing children are injured by natural conditions on the land, such as rocks made slippery by a waterfall.

The attractive nuisance doctrine is a special rule regarding child trespassers. It creates a duty of ordinary care on the part of the landowner who maintains an artificial (in most states) condition on the land that is likely to lure in child trespassers. The rationale behind the rule is that the landowner, “‘by maintaining the instrumentality, impliedly invites the child onto his land, and hence owes him a duty of due care under the circumstances.’”

Question to meet this Nuisance is “Whether a child could recognize the danger”

Question 13

Good Samaritan Statutes

Answer 13

Protect those who perform gratuitous rescues. Tend to relieve one who responds to an emergency situation for simple negligence during the course of a rescue attempt
Doesn’t protect against wanton or willful misconduct

Question 14

Duties to Rescuers: A’s duty to C, when C rescues B from A’s negligence

Answer 14

Restatements: moves away from “foreseeability” (foreseeable rescuer?)

In general, Danger invites rescue

Look at was rescuer “actions rash or foolhardy”
BUT
Not likely to succeed would not render it rash or foolhardy

Question 15

Firefighter Rule

Answer 15

Professional Rescuer is barred from recovery for injuries arising during rescue effort

(primary assumption of risk)/ Knew what they were getting into
Want people to call for help

Exception:
Reckless
Conduct INDEPENDNT from what rescuer was there for

Question 16

Negligent Infliction of Emotional Distress

Answer 16

Establish 1 of them
Old- Fright Based harm/ direct physical impact (heart attack)

(1) Zone of Danger/Near Miss: P was in the zone of danger and could have been physically contacted as a result of d negligence but was not, Suffering Emotional Distress
Actually apprehensive of contact

(2) Bystander:
Modern Approach- (1) Present, (2) Appreciate the significance of what saw or heard (3) Parent/Child Relationship
(Not enough to have heard about it)

(3) Special Relationship: Counselor or funeral director mishandling ashes

Question 17

Primary Assumption of Risk

Answer 17

(1) Negate Duty (no jury)
(a) Risks associated w/ the activity seem obvious
(b) eliminating the risk would be too costly or impossible
(c) Liability under Neg. would chill a valuable activity
Burning Man must Burn
Baseball

Bars sports participants and spectators from recovery for injuries arising from inherent in the sport

Question 18

Reckless

Answer 18

(1) know the risk of harm OR
(2) Know the facts that make the risk of harm obvious and
(3) Act w/ a level of carelessness that demonstrates indifference to risk

Question 19

Implied (secondary) assumption of risk

Answer 19

The test for implied assumption of risk is subjective – whether the P knew of this particular hazard and chose to voluntarily encounter it (or could have avoided it) – and this is typically a fact question for a jury.

Question 20

Waivers enforceability

Answer 20

Waivers are usually enforced. Courts will strike them down in matters of public importance where one party used a bargaining power advantage to impose an adhesion contract. Here, the release not negotiated, but the service is of little public import so the release is valid