Duty of Care

Question 1

What are the elements of a prima facie case for negligence?

Answer 1

Duty - D had duty to conform conduct to specific standard of care to avoid against unreasonable risk of injury
Breach - D breached duty
Causation - breach is actual and proximate cause of injury
Damages - P was injured

Question 2

What are the 2 steps in analyzing whether D breached duty of care?

Answer 2

(1) to whom is duty owed, i.e. who are foreseeable P’s? and (2) what is the applicable standard of care?
* Duty of care is ONLY owed to foreseeable P’s!

Question 3

What is the danger invites rescue rule?

Answer 3

When D negligently puts themselves or third person in peril, then a rescuer is considered a foreseeable P, i.e. within scope of ppl to whom duty of care is owed.

Note: doesn’t include ppl with inherent risks in job such as firefighters and cops

Question 4

What is duty of care owed to viable fetus? What can parents recover for?

Answer 4

There is a duty of care owed to viable fetus, but fetus cannot recover for wrongful death. Parents can recover for damages in wrongful birth, wrongful pregnancy actions for medical expenses and pain and suffering from labor.

Question 5

What is the basic standard of care req’d?

Answer 5

All people owe a duty to behave with the same care as a reasonably prudent person. This is an objective measure - do not take into account mental deficiencies, inexperience, etc.

BUT, if D is someone with superior skill or knowledge, then we hold them to the standard of care of someone who has that skill or knowledge.

Note: we DO take account of physical characteristics (e.g. blind D must act as reasonable blind person)

Question 6

What standard of care are children held to?

Answer 6

Standard of child of like age, intelligence, and experience. So here, the test is subjective.

Child under age of 5 doe not have the capacity to be negligent.

Children engaged in dangerous adult activities MAY be held to adult standard of care.

Question 7

What standard of care is a professional held to?

Answer 7

Required to possess knowledge and skill of average member of the profession in good standing. (Doctors have national standard of care).

Question 8

Doctor must disclose ____ to patient, so that patient can ____.

Answer 8

risks of treatment to enable patient to give informed consent.

Duty is breached when doctor does not disclose and a reasonable person in P’s situation would have withheld consent.

Question 9

What duty is owed to P on D’s land?

Answer 9

Depends on whether P is unknown trespasser, known trespasser, licensee, or invitee:

(a) unknown trespasser: no duty owed to undiscovered trespasser
(b) known trespasser: land possessor must warn of or make safe conditions that are artificial, highly dangerous, concealed, and known to possessor in advance

(c) licensee: i.e. someone on land with permission for own purpose/biz (e.g. house guest, possessor has duty to warn or make safe conditions that are concealed or known to them in advance
Note: firefighters, cops licensees but NO duty of care wrt risk inherent to job

(d) invitees, i.e. people entering from invitation for purpose connected with land/biz of owner, possessor owes duty regarding conditions that are: concealed, known OR could have been discovered by reasonable inspection

Question 10

What duty is owed wrt possibly trespassing children on D’s land?

Answer 10

Attractive Nuisance doctrine = courts can impose duty to exercise reasonably care in avoiding a reasonably foreseeable risk of harm to children cause by dangerous artificial conditions on property. P must show:

• dangerous condition on land that owner is or should be aware of
• owner knows or should know that children might trespass on land
• condition is likely to cause injury to children
• expense of remedying the situation is slight compared with magnitude of risk

Question 11

What duty is owed to users of recreational land?

Answer 11

When landowner permits general public to use land for recreational purposes w/o fee, they are not liable for resulting injuries UNLESS they willfully and maliciously failed to guard against or warn of dangerous condition or activity

Question 12

What is the duty owed to ppl off D’s premises?

Answer 12

Generally none, except if there is an unreasonably dangerous artificial condition or structure abutting adjacent land.

And, must carry on activities on premises so as to avoid unreasonable risk of harm to others off premises.

Question 13

What are duties of lessor/lessee (landlord - tenant)?

Answer 13

Landlord/lessor has duty to warn re existing defects of which they are aware or have reason to know, which the lessee is unlikely to discover with reasonable inspection,

Lessee has duty to maintain premises.

Question 14

When will statutory standard if care apply to D? What are D’s possible defenses?

Answer 14

Statutory duties of care imposed w/ criminal penalties may replace c/l duty of care if:

• P is within protected class
• statute was designed to protect against the type of harm that P suffered

Statute may not apply if compliance would cause more danger than violation or compliance was beyond Ds control

Question 15

What is the legal effect of a statutorily imposed duty wrt prima facie case of negligence?

Answer 15

If D violates a statutorily imposed duty this is negligence per se - i.e, it establishes a conclusive presumption of duty and breach.

BUT compliance with statute does not necessarily est. due care.

Question 16

In what 4 cases may a D have an affirmative duty to act?

Answer 16

Generally, people do not have affirmative duties to act. (e.g. no duty to rescue).

BUT, exceptions exist when:
1. special relationship: e.g. parent-child, innkeeper/shopkeeper/common carriers - those who gather public for profit have duty to reasonably aid/assist patrons
2. duty to assist someone who is in peril due to your own conduct
3. assumption of duty by acting - e.g. once you start to assist you have a duty to complete,
BUT: some states have good samaritan laws saying doctors/nurses exempt from ordinary, but not gross, negligence here
4. duty to prevent harm from third persons IF one has actual ability and authority to control person and knows/should know person is likely to harm

Question 17

what duty of care do shopkeepers/innkeepers have?

Answer 17

Higher duty - liable for slight negligence. But P must be a passenger or guest

Question 18

What duties are owed to bailor/bailee (i.e. someone who loans someone property)?

Answer 18

Bailee (borrower) duties: depends on who benefits from transaction:

 - if bailor is sole benefitor, then low standard of care
 - if bailee is sole benefitor, then high standard of care
 - if both mutually benefit, then ordinary 

Bailor:

- - if bailee is sole benefitor, then bailor must inform them of known, dangerous defects in property     - - if bailee is for hire, then must inform them of defects that they know/should be aware of

Question 19

Does duty of care take into account emergency situations?

Answer 19

Yes, so ordinary care wrt emergency is OK, UNLESS D made emergency

Question 20

What are the 3 ways P can recover for emotional distress?

Answer 20

• IIED claim
• NIED claim
• tacking on emotional damages to other tort claims (do not need to go thru elements for the above)

Question 21

What are the 3 types of IIED cases?

Answer 21

• near miss cases
• bystander cases
• special relationship between P-D

Question 22

What are the elements of an NIED claim?

Answer 22

D subjected p to threat of physical impact or severe emotional distress likely to cause physical symptoms.

D acted in negligently in doing so.

D’s actions caused physical symptoms from distress (some states don’t require)

For bystander to recover - P must be (1) closely related to the injured person, (2) present at time of scene, and (3) observe or perceive injury

Question 23

What are the elements of a near miss NIED case?

Answer 23

D creates foreseeable risk of physical injury to P

P is within zone of danger (i.e. sufficiently close that they are subject to high risk of physical impact)

P suffered physical symptoms from distress (e.g. shock to nerves that causes physical symptoms) (not all states req)

Question 24

What are the elements of a bystander NIED claim?

Answer 24

D negligently injures another

P and person injured are closely related

P was present at the scene of injury and

P personally observed or perceived the event

Most state DON’T req physical symptoms

Question 25

What is a special relationship NIED claim?

Answer 25

D could be liable for negligently causing severe emotional distress when duty arises from certain relationship, such that D negligence has greater potential to cause such distress (e.g. doctor misdiagnosing, mortuary negligent cremation)

Physical symptoms not req’d usually.