Duty of care

Question 1

Exceptions to “No Duty”

Answer 1

o When actor creates a hazard, even non-negligently, there is a duty to warn of the hazard
o If an actor begins to help, the actor must do so competently, and can discontinue aid only if the actor leaves the person being aided in no worse condition
o Special relationships can give rise to a duty to rescue.

Question 2

Nonfeasance

Answer 2

Failure to act when a duty to act existed

Question 3

Misfeasance

Answer 3

acts which are improperly performed

Question 4

pseudo-feasance

Answer 4

misfeasance that look like nonfeasance

Question 5

R2-390:

Answer 5

Vince v. Wilson
one who supplies directly or through a third persona chattel for the use of another whom the supplier knows or has reason to know be likely because of youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself & others… is subject to liability for physical harm resulting to them

Question 6

Negligent entrustment requires either…

Answer 6

1) Giving something one owns or controls to another who the actor knows or should is not competent to use it; or
2) Supplying an instrumentality to another who the actor knows or should know is not competent to use it

Question 7

How does negligent entrustment differ from vicarious liability?

Answer 7

o Negligent entrustment requires negligence on the part of the secondary defendant, while vicarious liability does not require negligence of the secondary defendant

Question 7

Invitees

Answer 7

a person the landowner invites onto their property with expectation of financial benefit or a member of the general public if the landowner opens the property to the general public
o A public invitee is a person invited onto land as a member of the public for the purpose for which the property is open to the public

Question 8

Landowner duty to invitees

Answer 8

 A) remedying conditions they know or should discover and should realize will be unreasonably dangerous to invitee
 B) Remedying conditions that they expect invitee will not realize or discover danger of or will not protect themselves; and
 C) taking reasonable care to protect invitee

Question 9

Landowner duty to licensee

Answer 9

A landowner need make their property no safer for the licensee than they make for themselves
 Refrain from inflicting willful, wonton, or intentional injury
 Refrain from active and affirmative negligent; and
 Warn of any “Trap” or pitfall owner actually knows about that they might expect to cause harm to the licensee even if the licensee uses due care

Question 10

Licensee

Answer 10

Person privileged to enter and remain on land only by virtue of possessor’s consent e.g., social guest

Question 11

Trespasser

Answer 11

Person who enters or remains on land without permission

Question 12

Landowner duty to trespasser

Answer 12

o A landowner has no duty to put their land in reasonable condition or carry on activities on their property so as to not endanger trespasser
o Landowner is only liable for wilful and wanton harm

Question 13

Attractive Nuisance Doctrine:

Answer 13

A landowner may have more duty toward trespassing children

Question 14

Landlord’s duties regarding leased premises

Answer 14

o Hidden dangers the landlord knew about, but the tenant did not
o Premises leased for public use
o Premises retained under landlord’s control (e.g., common areas)
o Negligent repairs

Question 15

Modern approach of premises liability

Answer 15

R3-52o A land possessor owes a duty of reasonable care to entrants on the land with regard to
 Conduct by the land possessor that creates risks to entrants on the land
 Artificial conditions on the land that pose risks to entrants on the land
 Natural conditions on the land that pose risks to entrants on the land

Question 16

Modern rule (premises) regarding flagrant trespassers

Answer 16

R3-52
o A) the only duty a land possessors owes to flagrant trespassers is the duty to not act in an intentional, willful, or wanton manner to cause physical harm
o B) or has the duty to exercise reasonable care if the trespasser reasonably appears to be imperiled and
 1) helpless; or
 2) unable to protect themself

Question 17

what makes a trespass flagrant

Answer 17

1) entry that results in the commission of a crime directed at the land
possessor or the land possessor’s family, guests, or property;
(2) entry for the purpose of committing such a crime, even if it is not
accomplished;
(3) entry for another illegal or improper purpose;
(4) entry despite efforts by the land possessor to prevent trespass and
specifically to prevent entrance by the plaintiff

Question 18

Exceptions to parental immunity:

Answer 18

o 1) negligence outside parental role and within scope of employment
o 2) willful, wanton, or reckless conduct by the parent
o 3) negligence toward an emancipated child
o 4) actions brought against a parent when a 3rd party liable
o 5) actions brought if either parent or child dies
o 6) actions against defendant acting in loco parentis (i.e grandparent or foster parent raising the children)

Question 19

NIED Three sources of mental distress:

Answer 19

o 1) Mental distress due to fear of person injury (e.g., obsorne)
o 2) Mental distress due to fear that a loved one, co-worker, friend, etc. will suffer physical injury (e.g., portee v. jaffee)
o 3) Mental distress unrelated to bodily injury (e.g., gammon)

Question 20

NIED three dichotomies

Answer 20

o Direct v. indirect harm
o Fear of bodily harm v. other psychic harm
o Fear of traumatic injury v. fear of non-traumatic injury

Question 21

Impact rule

Answer 21

unless there is physical impact upon plaintiff, plaintiff cannot recover for emotion distress brought on by fear of injury

Question 22

Zone of danger

Answer 22

π can recover for emotional distress even if they did not suffer a physical impact, so long as they were sufficiently close to the dangerous force as to be “in danger of immediate bodily harm”

Question 23

Elements of the bystander rule

Answer 23

1) sudden death or serious physical injury to another
* 2) marital or intimate family relationship with the injured person
* 3) contemporaneous observation of the death or injury
* 4) severe emotional distress

Question 24

R3-47

Answer 24

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if:
o Occurs in the course of specific categories of activities, undertakings or relationships in which negligent conduct is especially likely to cause serious emotional harm

Question 25

Negligent interference with consortium

Answer 25

R2-693(1)
An actor who tortiously causes physical harm to one spouse “is subject to liability to the other spouse for the resulting loss of the society & services of the first spouse including impairment of capacity for sexual intercourse”

Question 26

R(2)- 552

Answer 26

Nycal Corp. v. KPMG Peat Marwick LLP
Liability confined to a limited group for whose benefit and guidance the accountant intends to supply the info or knows the recipient intends to supply the info for reliance with regard toa particular transaction or a similar transaction
 It is not required that person who is to become π be identified or known to the defendant as an individual when the info is supplied

Question 27

Near privity (NY test)

Answer 27

accounts liability limited to those with which it is in privity or a quasi-privity relationship. Elements:
 1) accountant must have been aware that the financial reports were to be used for a particular purpose/s
 2) in furtherance of which a known party was intended to rely, and
 3) there must be some conduct by the accountant linking the accountant to the injured party that evidences the accountant’s understanding of the party’s reliance