Duty and Breach Flashcards
Licensees
Enter land with owner’s permission, but doesn’t qualify as an invitee. Ex. Guests, like friend and acquaintences.
Can only recover damages if owner knew about bad thing AND failed to warn.
Landowner duty to Licensees
Duty to warn about or make safe already known dangers on land.
NO duty to inspect or duty to fix.
NO duty to warn of open and obvious dangers.
Invitees
Includes:
Persons who enter land open to the public (ex. stores, parks); AND
Entrants who provide a material benefit to the landowner (business visitors; ex. landscapers)
Landowner duty to Invitees
Greatest obligations. ALWAYS owed a duty of reasonable care.
Duty of reasonable care with respect to:
1. activities undertaken on the land
2. Known dangers; and
3. Dangers that could be discovered with reasonable inspection.
Trespassers
Enter the land without the owner’s permission.
Not normally owed duty, unless owner knows of regular trespassers, then must use reasonable care to warn of foreseeable harm.
Duty, generally
In general, a duty of care is owed to all foreseeable persons who may be injured by the defendant’s failure to follow a reasonable standard of care.
An actor has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
Rescue
There is NO duty to rescue unless a person has voluntarily undertaken the rescue.
Child Trespassers
As duty of reasonably care is owed if:
1. A human-made condition poses an unreasonable risk of death or serious bodily harm to children, and th elandowner/possessor knows or should reasonably know of both the condition and the risk;
2. The landowner/possessor knows or has reason to know children are likely to trespass;
3. The child b/c of its youth is likely to discover the condition or to appreciate the risk;
4. The burden of taking precautions is low in relation to the risk of harm to the child; and
5. The landown/possor fails to exercise reasonable care to eliminate the danger.4.
Common Areas
Landlords have a duty to maintain common areas and make reasonable repairs to leased property.
Serious Physical Impairment (duty standard)
Judged by a standard that recognizes the defendant’s physical limitations, but mental conditions do not apply
Children (duty standard)
Judged by a standard of a child of like age, intelligence and experience (unless the child is engaged in an adult activity).
Acting in an emergency (duty standard)
Judged by what a reasonable person would do in that situation, unless the defendant created the emergency
Proving Breach
Plaintiff must prove the dfendant acted unreasonably or should have taken a precaution (i.e., the defendant’s action fell below the standard of care)
Custom (Breach)
Custom does not dictate the result (i.e. the custom might be unreasonable itself), but it can be used to prove the defendant fell below the standard of care
Negligence Per Se
A defedant’s violation of a law establishes breach if:
1. The plaintiff is in the class of people protected by the law;
2. The violated law was designed to prevent the type of harm the plaintiff suffered; and
3. There is no excuse for the defendant’s noncompliance (e.g., compliance would impose a greater risk of harm or was impossible).
Res Ipsa Loquitur
A jury can draw an inference of breach if:
1. The event that led to the injury was the type that would not ordinarily occur had there been no negligence;
2. The injury was caused or was more likely than not caused by an instrumentality solely within the defendant’s control; and
3. The plaintiff’s fault did not contribute to the injury
Professionals
A professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing.
For doctors, most courts will apply a national standard of care to evaluate their conduct.
Duty to disclose risks of treatment
A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough info about its risks to enable the patient to make an informed consent to the treatment.
If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty.
Children engaged in adult activities
Where a child engages in a potentially dangerous activity that is normally one that only adults engage in, ost cases hold that he will be required to conform to the same standard of care as an adult in such an activity, e.g., driving an utomobile, flying an airplan, driving a motorboat.
Automobile Driver to Guest
Owe a duty of ordinary care in most jurisdictions.
Attractive Nuisance Doctrine
Landowner duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial condition on the property.
Failure to Act
Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable.
