Duty

Question 1

General Duty

Answer 1

The general rule of duty holds that everyone owes a duty to exercise
due care so as not to subject others to unreasonable risks of harm.

Question 2

Cardozo Rule on Duty

Answer 2

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo’s
majority opinion held that a defendant owes a duty only to those who could foreseeably
be endangered by the defendant’s negligent act. Therefore, according to the rule, there
is no duty owed to a plaintiff who is in a position of apparent safety when the defendant
commits a negligent act. This is the so-called “orbit of danger” test.

Question 3

Andrews Rule on Duty

Answer 3

In the Palsgraf case, Justice Andrews gave a dissenting
opinion which has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could
foreseeably be injured by his action. Thus, Cardozo looked at the issue from a
perspective of identifying whether a duty is owed, while Andrews considered the issue
as one of proximate causation.

Question 4

Special Duty

Answer 4

In addition to the general duty which everyone owes, special duties may
be imposed due to a special relationship or circumstance.

Question 5

Negligence Per Se

Answer 5

Under the doctrine of negligence per se, the elements of duty and
breach are proved when a defendant violates a safety statute which was intended to
protect the class of people to which the plaintiff belongs from the kind of injury the
defendant caused. In California, a presumption of negligence arises.

Question 6

Duty Owed to a Guest Passenger

Answer 6

A driver of a motor vehicle, in the absence of a
statute otherwise, owes to persons riding in the vehicle a duty of driving with due care.
However, a number of jurisdictions have statutes that provide that a guest passenger in
an automobile cannot recover from the owner or operator of the automobile unless the
owner or operator is guilty of willful misconduct, recklessness, or intoxication.

Question 7

Duty Owed to a Person Injured by a Drunk Driver

Answer 7

A person who serves alcoholic
beverages to one who is intoxicated is not, in the absence of a statute stating otherwise,
liable for the damages done by the intoxicated person. However, in those jurisdictions
which have statutes traditionally referred to as dram shop acts, an owner, a bartender or
other persons serving alcoholic beverages to a person who is intoxicated can be held
liable for the foreseeable damages caused by the intoxicated person.

Question 8

Owner Liability Statutes

Answer 8

Certain statutes impose liability upon owners of vehicles for
the tortious acts committed by persons to whom the owner intentionally furnishes the
vehicle.

Question 9

Family Purpose Doctrine

Answer 9

A parent who furnishes a vehicle to the members of his or
her family for customary convenience, assumes liability for the tortious acts committed
by those persons when the car is being driven for a family purpose.

Question 10

Omission to Act

Answer 10

An omission to act to prevent injury, or “nonfeasance” as it is
sometimes called, does not give rise to tort liability unless there is a special relationship
or special circumstance which creates an affirmative duty requiring the defendant to act
to protect the plaintiff.
An affirmative duty to act may arise when there is a close familial relationship, such
as parent and child or husband and wife; when the defendant and the plaintiff are coventurers;
when the defendant caused the plaintiff to be in danger or injured; when the
defendant has begun to render assistance to the plaintiff; when the defendant fails to
perform a duty to control the behavior of others; when the defendant is an innkeeper; or
when the defendant operates a common carrier such as a plane or ship.

Question 11

Duty Owed by a Good Samaritan

Answer 11

A person who embarks upon the performance of
services for another, whether gratuitously or for consideration, is under a duty to render
those services with due care. This person, however, is under no duty to complete the
performance of the services unless abandonment would prejudice the other party’s
position. The rendering of aid in an emergency constitutes the performance of services,
and a duty of care is imposed upon those who undertake to render such aid.
Some jurisdictions have enacted statutes designed to encourage physicians to
render emergency aid, by limiting the liability that could otherwise be imposed upon
them. Generally speaking, liability can be imposed upon them only for reckless or
wanton misconduct.

Question 12

Duty Owed to a Rescuer

Answer 12

A person whose negligence creates a situation in which he

needs to be rescued may be held liable for injuries incurred by his rescuer.

Question 13

Negligent Supervision

Answer 13

Negligent supervision is a cause of action which is brought by
a plaintiff who suffered injury because a child or other person was inadequately
supervised by one who owed a duty of supervision. Most commonly, it is brought
against parents who failed to exercise ordinary parental discretion as to the manner in
which their child is supervised or cared for.
Modernly, a child may bring an action against his or her own parents for injuries
sustained by the child because of lack of proper supervision.

Question 14

Duty Owed to an Invitee

Answer 14

A land occupier owes a duty of ordinary care to invitees,
which includes reasonably inspecting the land for dangerous conditions and repairing
those dangerous conditions which a reasonable inspection would reveal.

Question 15

Invitee

Answer 15

An invitee is a person who has an express or implied invitation to enter property
for the purpose for which the property is maintained.

Question 16

Business Invitee

Answer 16

A business invitee is a person who has express or implied

permission to enter business property to do business with the land occupier.

Question 17

Public Invitee

Answer 17

A public invitee enters property in the possession of another for the
purpose for which the property is held open to the public. It is not required that a
business purpose be involved. Public employees acting within the scope of their official
duties are included in the category of public invitees.

Question 18

Duty Owed to a Licensee

Answer 18

A landowner owes a duty of ordinary care to licensees,
which includes either 1) warning licensees of known dangerous conditions, unless they
are obvious or already known to the licensee, or 2) repairing dangerous conditions to
make the property safe.

Question 19

Licensee

Answer 19

A licensee is a person who enters property with the express or implied
permission of the land occupier. Such entry is not for the purpose of doing business.

Question 20

Duty Owed to a Trespasser

Answer 20

The land occupier generally owes no duty of care to the
trespasser unless the trespasser is a constant trespasser upon a limited area or a child
to whom the Attractive Nuisance Doctrine applies.

Question 21

Trespasser

Answer 21

A trespasser is someone who enters the real property of another without
express or implied consent.

Question 22

Duty Owed to a Constant Trespasser Upon a Limited Area

Answer 22

The land occupier owes
a duty to a constant trespasser upon a limited area of warning him of known dangerous
artificial conditions unless such conditions are obvious.

Question 23

Constant Trespasser Upon a Limited Area

Answer 23

A constant trespasser upon a limited area
is a trespasser whose presence is known, or should be known, to land occupier
because of the trespasser’s repeated acts of trespassing.

Question 24

Duty Owed to a Child Trespasser

Answer 24

The land occupier owes no duty to a child
trespasser unless he is a constant trespasser upon a limited area or unless the case is
one in which the Attractive Nuisance Doctrine applies.

Question 25

Attractive Nuisance Doctrine

Answer 25

The Attractive Nuisance Doctrine, recognized in most
jurisdictions, imposes a duty upon land occupiers for the protection of young children
whose trespasses are to be anticipated and whose immaturity renders them particularly
susceptible to injury from dangerous conditions on the land. The land occupier owes a
duty of reasonable care to eliminate a danger or to otherwise protect children when the
following elements are present:
1) foreseeability of trespass,
2) foreseeability of serious harm,
3) the child is unaware of the danger, and
4) the benefit to the owner of maintaining the condition in its dangerous form is
slight when weighed against the risk to children.

Question 26

Duty Owed to a Person Off the Premises

Answer 26

The land occupier owes a duty to maintain
the premises in a reasonably safe condition for the protection of passersby and
occupiers of adjoining premises. This includes the duty of inspection to discover and
correct those defects which a reasonable inspection would reveal.

Question 27

Rowland v. Christian

Answer 27

Under Rowland v. Christian, the court eliminated the distinction
between business invitee, licensee, and trespasser, and found that the land occupier
owes a duty to act as a “reasonable man” for the purposes of rendering the occupied
property safe for others.

Question 28

Natural Conditions

Answer 28

A land occupier traditionally owed no duty to others for the care of
natural conditions on the occupied property. However, the recent trend may be to
impose a duty of reasonable care as to natural conditions, at least in those situations
where the condition is known to the landowner.