DUTY

Question 1

DUTY - who decides?

Answer 1

• judge

Question 2

Misfeasance

Answer 2

• when D engages in affirmative risk creating conduct leading to personal injury or property damage, duty is owed to a foreseeable P

Question 3

Nonfeasance

Answer 3

• failure to intervene or act (generally no duty)

Question 4

Rowland Factors (factors for consideration if no duty)

Answer 4

• 1. foreseeability of harm
• 2. burden of the D and effect to community
• 3. degree of certainty P suffered injury
• 4. moral blame attached to D’s conduct
• 5. closeness of connection btw D’s conduct and P’s injury (argue D was not direct cause of harm!)
• 6. policy of preventing future harm
• 7. availability, cost and prevalence of insurance

Question 5

Conditions of land - status of land entrant

Answer 5

• sets SOC and the duty owed

Question 6

Invitee

Answer 6

• Enter w/express or implied intent + for economic benefit
• SOC: RPPuSSC (usually entails taking steps to discover dangers, and warn of those that are known)
• ex: mail carriers, meter readers, etc.

Question 7

Licensee

Answer 7

• Enter w/express or implied consent + for his own convenience or business with someone other than owner
• SOC: not to injure willfully or wanton negligence + warn non-obvious artificial or natural dangers known
• ex: Ruvalcaba - child fell through open banister on stairs

Question 8

Trespasser

Answer 8

• w/o consent or invitation
• SOC: no willful or wanton harm
• exception: frequent or known trespasser (obligated because there is reason to know if trespasser is approaching an artificial condition), also, child land entrant applies

Question 9

Dichotomy

Answer 9

• Invitee/Licensee - express/implied consent, warn known dangers
• Trespasser - no consent, no willful harm

Question 10

Unitary approach

Answer 10

• CA
• SOC: RPPuSSC
• child land entrant becomes irrelevant

Question 11

Child land entrant

Answer 11

• and child who enters and is injured by an artificial condition
• raises standard to invitee

Question 12

Landlord/Tenant Rule

Answer 12

• condition in common area - RPPuSSC
• knowledge of concealed, non-obvious danger - must warn
• negligently repairs - RPPuSSC
• covenant to repair - if promise to repair and dont, liable for damages

Question 13

Duty to assist/act/rescue - conduct creates risk/innocent prior conduct

Answer 13

• if you cause it, duty to assist the person in peril (majority)
• non-negligent conduct places person in peril, duty to exercise RC to remove or warn of risk (minority)

Question 14

Special Relationship

Answer 14

• parent/child
• teacher/student
• innkeeper/guest

Question 15

Undertaking to act

Answer 15

• obligation to not leave in worse condition

Question 16

Statute - child victim protection act

Answer 16

• child victim protection act: misdemeanor to witness sexual conduct with minor and not act

Question 17

Intentional prevention of aid

Answer 17

• bartender refuses samaritan to use phone

Question 18

Gratuitous promise

Answer 18

• if you promise, you must act

Question 19

Duty to warn/control

Answer 19

• therapist: if foreseeable victim

- suppliers of alcohol

Question 20

Duty to protect (3 foreseeability approaches)

Answer 20

• landlord has duty to protect invitees from foreseeable criminal acts
• prior similar incidents: # of similar incidents, proximity in time and location to present crime, similarity of crimes
• totality of the circumstances: look at all circumstances surrounding incident + prior similar incidents
• balancing test: degree of foreseeability of harm vs. duty to be imposed

Question 21

Public duty doctrine

Answer 21

• Proprietary: gov’t does something usually done by private enterprises - law is the same
• Ministerial: act performed in prescribed manner by policy
• Discretionary: judgment, planning, resource allocation - no duty

Question 22

Neg Inflic of Emot Distress (NIED)

Answer 22

• no duty unless…
• actual impact: minority
• zone of danger: P could have been physically injured, near miss (majority)
• pre-existing duty: only need serious emotional distress (CA + zone of danger), ex: doctor/patient
• foreseeable P + serious emotional distress (minority)

Question 23

NIED - bystander

Answer 23

• no recovery (very few juris)
• zone of danger (majority)
• Things/Clohessy: present at scene, or arrive immediately after - P closely related
• Dillon: outside danger zone - P nearby + observe incident + closely-related
• foreseeable P + serious emotional distress

Question 24

Wrongful conception/life/birth

Answer 24

• damages directly associated with pregnancy and birth (majority)
• • recover cost of raising child (minority)

Question 25

Loss of consortium/death/survival

Answer 25

• loss of consortium: only spouse recover (maj), allow parents for children and vice versa (minority)
• wrongful death: only economic (minority), heirs can bring claim for economic losses + comfort (maj + CA)

Question 26

Attorney duty

Answer 26

• absent fraud, bad faith, no duty