Duty - Standards of Care

Question 1

Reasonable Prudent Person Standard of Care

DEFAULT

Answer 1

Must exercise the same degree of precaution as the hypothetical reasonably prudent person acting under similar circumstances

Objective Standard
(make no allowances for a D's particular shortcomings, such as stupidity, novice, mentally handicaped)

Question 2

Superior Skill addition to RPP

Answer 2

If D has a superior skill or a superior piece of knowledge, the RPP standard includes that superior kill or knowledge

Question 3

Physical Characteristics exception to RPP

Answer 3

Where relevant, a D’s physical characteristics are taken into account.

Ex: Blind D must act like a reasonably prudent blind person under the circumstances

Question 4

Children

Answer 4

Children must conform to a standard of care of a child of similar age, experience, and intelligence.

SUBJECTIVE standard

Question 5

Children – Adult Activities Exception

Answer 5

If a child is engaged in an adult activity, then apply the RPP standard and NOT the child standard

Adult Activities = operating a motorized vehicle (cars, boats, ski jets, tractors, etc.)

Question 6

Professionals

Answer 6

Professionals owe the care that an average member of the same profession, providing similar professional services would apply.

EMPIRICAL STANDARD
(look at stats and custom)
i.e. a duty to conform to professional custom

Question 7

Informed Consent Doctrine

Answer 7

Doctors owe the duty to disclose risks of treatment to the patient before embarking upon that treatment.

Question 8

Premises Liability Cases

Answer 8

What level of duty does a landowner owe a person that enters LO’s estate and encounters a dangerous thing

Question 9

Unknown Trespasser

Answer 9

Definition:
Person who comes onto land without the permission of the possessor without the knowledge of the possessor.

Duty of Care:
NONE

Why?
Unknown trespassers are unforeseeable victims

Question 10

Known Trespasser

Answer 10

Definition:
Person who comes onto land without permission of the possessor, but the possessor knows of the trespasser or should reasonably anticipate the trespasser

Duty of Care:
Only owe the duty to warn or make safe artificial, highly dangerous, concealed hazards that possessor has prior knowledge of.

Question 11

Licensee

Answer 11

Definition:
Enter land with permission (express or implied) but do not confer economic benefit on the possess of the property

Duty of Care:
Must protect against concealed conditions that you know in advance

Question 12

Social Guests are …

Answer 12

Licensees

Question 13

Invitee

Answer 13

Definition:
Enter land with permission (express or implied) to confer economic benefit on the possessor of the property

Duty of Care:
Owe duty to protect invitees from all reasonably knowable hazards

Question 14

Scope of Invitation

Answer 14

Invitations (or permission grants) have a scope. If an invitee or licensee exceeds the scope, then they can be downgraded in the duty of care owed to themselves

Question 15

Firefighters and Police Officers

Answer 15

Never allowed to recover for injuries that are inherent risks of their job.

Why?
Theory of the Assumption of Risk

Question 16

Trespassing Children

Answer 16

Must exert reasonably prudent care regarding artificial conditions on the land

Question 17

Attractive Nuisance Doctrine

Answer 17

If there is a hazard on your property, where your property is attractive to kids, such as to entice them to enter, then reasonable prudence dictates that you must make the hazard safe

Elements:

(1) Dangerous condition on the land that the owner is or should be aware of;
(2) Owner knows or should know children frequent the vicinity of the condition;
(3) Condition is likely to cause injury to the child
(4) Expense of remedying the situation is slight compared with the magnitude of the risk

Note: The child does not have to be attracted onto the land by the dangerous condition

Note 2: The attraction alone is not enough for liability

Question 18

Satisfying Duties for Adults Entering Property

Answer 18

1. Fix hazardous condition through repair or make safe

2. Warning

Question 19

Statutory Standards of Care

Answer 19

Can borrow portion of criminal code as the standard of care if:

1. it is designed to protect a class of people that P is a member; AND
2. it is designed to mitigate the type of risk that the P’s injury resulted from

Question 20

Exceptions to Statutory Standard of Care

Answer 20

1. If statutory compliance would have been more dangerous than violation
2. If statutory compliance was impossible

Question 21

Duty to Act Affirmatively?

Answer 21

THERE IS NO DUTY TO ACT AFFIRMATIVELY

There is NO duty to RESCUE

Question 22

Common Law Rescue Doctrine

Answer 22

If you opt to rescue, then you must perform the rescue carefully.

To do so negligently means that you can be held liable

Question 23

Good Samaritan Laws

Answer 23

Safe harbor for the good Samaritans from the CL Rescue doctrine

Question 24

Pre-Existing Relationship

Answer 24

Triggers an affirmative duty to act reasonably under the circumstances

1. LO-Invitee
2. Innkeeper-Guest
3. Common Carrier-Passenger

Question 25

Negligent Infliction of Emotional Distress –

Near Miss Cases

Answer 25

RPP [other base std of care]
+
P must show that P was in zone of physical danger
+
P suffered subsequent physical manifestations as a result of emotional distress

Question 26

Negligent Infliction of Emotional Distress –

Bystander Cases

Answer 26

RPP [other base std of care]
+
P and direct physical victim must be close family members
+
P must be on the scene and see the harm as it occurs

Question 27

Negligent Infliction of Emotional Distress –

Business Relationship Cases

Answer 27

P and otherwise negligent D are in a pre-existing biz relationship, where careless performance is highly likely to cause emotional distress