Duty to Others/Standards of Care Flashcards
Invitees Definition
Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities
Duty to Invitees
D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land.
Invitee Standard of Care
(1) Condition must be concealed, and
(2) One possessor knew about in advance or could have discovered through a reasonable inspection
Reasonable inspection definition
inspection done by RPP.
RPP doesn’t inspect their prop. every day. Reasonably thorough. Takes into acct cost of inspection and benefits.
Licensees Definition
Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open to the public (social guest).
Licensees Duty
D must warn of known concealed dangers (just warn, not cure) that are not obvious.
Duty of care owed to people who knock on doors for job/activism etc.
Special type of licencees.
Duty only when potentially harmful cond is:
(1) Concealed from licencee
(2) One that possessor knew about in advance.
Duty of care owed to police officers/firefighters
Police and firefighters are entitled to no duty of care regarding any risk that is inherent in their job.
They assume the risk.
Trespassers Definition
Enters D’s land without express or implied consent of land possessor.
Duty to Trespassers
Duty to avoid infliction of willful or wanton harm.
Land Possessors Definition
▪ D is engaged in an activity on the land.
Duty owed by Land Possessors
Duty of reasonable care owed to all except unknown trespassers.
A land possessor has a duty to an invitee . .
duty to reasonably search out dangers on the property.
Known trespassers Defintion
frequent trespassers (must be obvious - e.g. a well-worn path),
Land owner Duty to known or frequent trespassers
duty to warn of known and concealed dangerous artificial conditions.
EXAMPLE: Dan knows of trespassers. If he builds a crocodile pit and hides it, he must put up a warning of the dangers. If there is naturally occurring quicksand, he does not need to warn.
Known Trespasser Standard of Care highly dangerous definition
Capable of inflicting severe bodily harm or death
4-part test for the Known Trespasser Standard of Care
(1) Only duty with regard to artificial condition.
- No duty for natural condition
(2) Condition must be highly dangerous
- No duty of care in moderately dangerous condition
(e,g,: slippery area rug in house)
(3) Condition must be one that is concealed.
- No duty of care for open and obvious conditions.
(4) Condition is one that possessor knew about in advance
(in short: known, man-made death traps).
Attractive Nuisance Doctrine Definition
A heightened standard of care may apply as to artificial conditions on D’s land
Duty to Child Trespassers
Child trespassers are owed the duty of a reasonably prudent person acting under similar circumstances.
Ordinary negligence standard.
Attractive Nuisance Doctrine - 5 factors
Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee. (5 factor test):
▪ Too young to appreciate the danger;
▪ D knows, or has reason to know, of the trespass;
▪ D knows of the dangerous condition;
▪ Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
▪ The risk of danger of the artificial condition outweighs its utility and burden to fix it.
Attractive Nuisance Methods of Satisfying Duty
duty to eliminate or repair dangerous condition, or to warn
Typically choices that have warnings better option on MBE
If P is adjacent to land
▪ Artificial condition on land - duty of reasonable care.
▪ Natural condition from land - no duty except trees in urban areas.
When is a landlord liable to tenant?
▪ LL is not liable unless:
● Common areas over which LL retains control;
● Negligent repairs;
● At time of lease, LL knows of a concealed dangerous condition; or
● LL knows that T is going to hold property open to public.
Reasonable Prudent Person Objective Test
D’s conduct is measured against expectation of conduct within community.
Reasonable Prudent Person Does not take into account…
mental ability, speed of reflexes, or mental health.
Reasonable Prudent Person does take into account…
● Physical conditions (blind, deaf, amputee)
● Emergencies not of D’s own making considered by jury (e.g., rushing to hospital because child is dying).
Reasonable Prudent Person - standard if there is a physical condition present
In this case, D will be held to the standard of a RPP with that condition.
Reasonable Prudent Person - standard if there is a emergency not D’s making
Jury can consider emergency to determine if D acted reasonably under the circumstances.
VA Business Owner Duty to Invitee Rule
Business owner does NOT have a duty to take positive action to prevent criminal assaults by third parties while invitee in on premises
VA Business Owner Duty to Invitee Rule Exception
If business owner knows that criminal assaults are occurring or about to occur on he premises, indicating imminent probability of harm to the invitee
VA Commercial Landholders Duty
To remove or warn of a danger that is open and obvious, such as natural accumulations or ice and snow after a storm
Residential householders DO NOT have this duty
VA Landowner duty to people who enter to recreational uses
No duty to care or keep land safe to ingress or egress
VA landowner duty who gives permission to enter for rec purposes
If gives express or implied permission to enter for rec purposes or for use of an easement does not:
● represent premises are safe for that purpose;
● assume responsibility for or incur liability for any intentional or negligent acts of such person or any other person
VA Landowner is liable for
Gross negligence or willful or malicious failure to guard or warn against a dangerous condition
VA Doctrine of Attractive Nuisance
Does not recognize when danger is open and obvious»_space; only when danger is hidden of latent
VA Duty of landlord against third party actors
if heightened degree of foreseeability of future assaults based on prior conduct»_space; if D was aware
Hand Formula Factors
Failure to act as a reasonable prudent person - apply Hand Formula:
▪ What is the probability of harm occurring from D’s conduct?
▪ What is the likely magnitude of the harm going to be?
▪ What is the burden on D to avoid the harm?
EXAMPLE: Dunco trolley company decides to build a trolley line using uninsulated wires. Peter is walking across the bridge carrying a metal pole and the pole makes contact with the wires, shocking him. The above factors must be used to determine whether the standard of care was met.
When do you apply the Hand Formula?
Failure to act as a reasonable prudent person
Foreseeability - Duty owed to whom?
ONLY foreseeable victims; NOT unforeseeable victims
Unforeseeable Definition
Very far away from the “zone of danger”
Reasonably Prudent Person Standard Objectivity
Objective, universal. Make no allowances for the defendant’s shortcomings.
Exceptions to the reasonably prudent person standard of care
(1) Person who has superior skill or knowledge. Standard is reasonably prudent person with that superior skill or knowledge.; e.g. someone who has knowledge of a particular dangerous route
(2) If a person is blind, the reaosnably prudent person is blind.
But, physical attributes only come in if it has something to do with the case.
Age Exception to Standard of Care for under 5 years old (MBE)
no duty of care to the rest of the world
Age Exception to Standard of Care for over 5 years old (MBE)
duty of RP child of similar age, experience, and intelligence, acting under similar circumstances.; Fluctuates with every different child and their individual circumstances
Age Exception to Standard of Care for child engaged in adult activity (MBE)
When a child is engaged in adult activity, ignore child standard and use adult RPP standard of care; E.g. underage driver of any motorized vehicle, even farm equipment
Standard of care for professionals
Standard that would be given by an average member of the same profession who provides similar types of services
i.e. doctors must behave as average of medical profession—conform to customary standards
Medical Standard of Care Applicability for GPs
Locality standard
Medical Standard of Care Applicability for specialists
Experts can come from anywhere.
Standard of care is national.
VA Medical Standard of Care Applicability
Virginia follows the national standard of care, meaning experts can come from anywhere.
BUT if local SoC is justified because of limited availability of healthcare services/facilities, local standard should control.
Informed Consent Rules
Doctor has duty to inform risks of procedure before going forward.
But if everything turns out fine, no COA.
Undisclosed risk must have happened to patient
Duty to rescue generally
No duty to act affirmatively.
You have no duty to rescue someone in peril.
Duty to rescue exceptions
If you choose to rescue and you mess up, you will be liable.
Exception to the Exception: Good Samaritan Laws
- Will shield rescuers from liability.
- BUT do not assume this will apply unless it says so
Lawyers, Architects, Accountants Duty
So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty.
Hint: Be on the watch for customs that are outdated and/or unreasonable that a court might reject.
Lack of Informed Consent Traditional Rule for Battery - Doctors
Physician is liable for battery if no informed consent about risks. In that case, the patient’s consent is negated because of lack of disclosure. This is still the case when there is a gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead).
Lack of Informed Consent Traditional Rule for Negligence - Doctors
Physician must divulge risks that are customarily divulged by a physician in the same set of circumstances (professional rule).
New trend replacing lack of informed consent»_space; standard of materiality
Physician must divulge all material risks, meaning risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment (patient rule).
● Failure to divulge material risk is malpractice if P can show she would have refused the procedure if the physician divulged the risk.
