Duty Flashcards
Default Rule
Under the default rule, all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct.
Affirmative Duty
In general, one does not have an affirmative duty to act to warn or assist others unless (1) there is a special relationship between the parties, (2) the defendant voluntarily undertakes to act, (3) the defendant injures someone (negligently or not), or (4) the defendant creates a risk of harm to someone.
Special Relationship
The fact that an actor realizes that their action is necessary for another’s aid or protection does not impose a legal duty to act unless there is a special relationship. These relationships include (1) innkeepers and guests, (2) common carriers and passengers, (3) possessors of land who hold it open to the public, (4) people who have custody of another in circumstances in which the other person is deprived of normal opportunities of self-protection (child care, custody of school children). [minority: co-adventurers on a hazardous undertaking]
False Information
One who negligently gives false information to another may be liable for the physical harm caused due to reasonable reliance on the information. This duty is owed to both the recipient of the information and to anyone the person may reasonably foresee to be injured as a result.
Conduct of Others
In general, a person does not owe a duty to control the conduct of others or warn those endangered by the conduct unless there is a special relationship between them and the person whose conduct must be controlled or them and the foreseeable victim of that conduct.
Utility
A public utility does not have an affirmative duty to provide service, and therefore does not owe non-customers a duty to take reasonable care. (Strauss)
Social Hosts
Social hosts do not owe a duty to people allegedly injured as a result of them providing alcohol to their guests. However, commercial vendors of alcohol do have a duty to those allegedly injured as a result of providing alcohol to their customers.
Negligent Entrustment
Under negligent entrustment, a person may be held liable for physical harm caused by supplying use of a chattel to another if the supplier knows or has reason to know that it will likely be used in manner involving unreasonable risk of harm. This applies to sellers, lessors, donors, lenders, and bailors.
Landowner Duty (Broad)
Under the traditional rule, a landowner’s duty depends on whether the person is an invitee, licensee, or trespasser. Under the modern rule, a landowner has a duty to take reasonable measures to warn of or to make safe any dangerous conditions of which the owner is actually aware and those which they should be aware of. This duty extends to ordinary trespassers but not to flagrant ones.
Invitees
Under the traditional rule of landowner liability, a person is a business invitee if they are invited onto the land for the purpose of business dealings with the owner. A person is a public invitee if they are invited onto the land as a member of the public for which land is held open to the public. A landowner has a duty to take reasonable measures to warn of or to make safe any dangerous conditions of which the landowner is actually aware and those that would be revealed by a reasonable inspection.
Licensees
Under the traditional rule of landowner liability, a person is a licensee if they are on the land with the owner’s permission and do not meet the status of invitee. A landowner has a duty to take reasonable measures to only warn of or to make safe any dangerous conditions of which the landowner is actually aware of.
Trespassers
Under the traditional rule of landowner liability, a person is a trespasser if they are not legally allowed on the premises. A landowner only owes a duty to avoid willful and wanton conduct causing harm to the trespasser, however many states have exceptions for child trespassers.
Criminal Activity
A landowner owes a duty to invitees to take reasonable measures to protect against criminal acts that are reasonably foreseeable. To determine foreseeability, the courts use 4 tests.
Under the specific harm test, a landowner owes a duty to their patrons only if they are aware of a specific imminent harm.
Under the prior similar incidents test, foreseeability may be established by evidence of previous similar crimes on or near the premises.
Under the totality of the circumstances test, foreseeability may be established when considering all of the relevant facts including the condition of the land, prior incidents, and level of crime in the area.
Under the balancing test, foreseeability and gravity of harm must be balanced against the burden imposed to protect against that harm.
Sovereign Immunity
Under common law sovereign immunity, the government could not be held liable for their conduct without their consent. However, most states today have mostly waived sovereign immunity and instead categorize conduct in two ways. First, they distinguish between governmental and proprietary functions where sovereign immunity still applies to governmental functions. Second, states distinguish between discretionary and ministerial functions where sovereign immunity still applies to discretionary functions.
Police
In general, police do not have a legal duty to take affirmative steps to protect members of the public against criminal activity by third parties unless there is a special relationship with that member. Special relationships include those where (1) the police have assumed an affirmative duty through promise or action, (2) police knew that inaction could lead to harm, (3) there was direct contact between police and the injured party, and (4) the injured party reasonably relied on the police’s undertaking.
