Duty to Others/Standards of Care

Question 1

Invitees Definition

Answer 1

Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities

Question 2

Duty to Invitees

Answer 2

D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land.

Question 3

Invitee Standard of Care

Answer 3

(1) Condition must be concealed, and

(2) One possessor knew about in advance or could have discovered through a reasonable inspection

Question 4

Reasonable inspection definition

Answer 4

inspection done by RPP.

RPP doesn’t inspect their prop. every day. Reasonably thorough. Takes into acct cost of inspection and benefits.

Question 5

Licensees Definition

Answer 5

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).

Question 6

Licensees Duty

Answer 6

D must warn of known concealed dangers (just warn, not cure) that are not obvious.

Question 7

Duty of care owed to people who knock on doors for job/activism etc.

Answer 7

Special type of licencees.

Duty only when potentially harmful cond is:
(1) Concealed from licencee
(2) One that possessor knew about in advance.

Question 8

Duty of care owed to police officers/firefighters

Answer 8

Police and firefighters are entitled to no duty of care regarding any risk that is inherent in their job.

They assume the risk.

Question 9

Trespassers Definition

Answer 9

Enters D’s land without express or implied consent of land possessor.

Question 10

Duty to Trespassers

Answer 10

Duty to avoid infliction of willful or wanton harm.

Question 11

Land Possessors Definition

Answer 11

▪ D is engaged in an activity on the land.

Question 12

Duty owed by Land Possessors

Answer 12

Duty of reasonable care owed to all except unknown trespassers.

Question 13

A land possessor has a duty to an invitee . .

Answer 13

duty to reasonably search out dangers on the property.

Question 14

Known trespassers Defintion

Answer 14

frequent trespassers (must be obvious - e.g. a well-worn path),

Question 15

Land owner Duty to known or frequent trespassers

Answer 15

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.

Question 16

Known Trespasser Standard of Care highly dangerous definition

Answer 16

Capable of inflicting severe bodily harm or death

Question 17

4-part test for the Known Trespasser Standard of Care

Answer 17

(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).

Question 18

Attractive Nuisance Doctrine Definition

Answer 18

A heightened standard of care may apply as to artificial conditions on D’s land

Question 19

Duty to Child Trespassers

Answer 19

Child trespassers are owed the duty of a reasonably prudent person acting under similar circumstances.

Ordinary negligence standard.

Question 20

Attractive Nuisance Doctrine - 5 factors

Answer 20

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.

Question 21

Attractive Nuisance Methods of Satisfying Duty

Answer 21

duty to eliminate or repair dangerous condition, or to warn
Typically choices that have warnings better option on MBE

Question 22

If P is adjacent to land

Answer 22

▪ Artificial condition on land - duty of reasonable care.
▪ Natural condition from land - no duty except trees in urban areas.

Question 23

When is a landlord liable to tenant?

Answer 23

▪ 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.

Question 24

Reasonable Prudent Person Objective Test

Answer 24

D’s conduct is measured against expectation of conduct within community.

Question 25

Reasonable Prudent Person Does not take into account…

Answer 25

mental ability, speed of reflexes, or mental health.

Question 26

Reasonable Prudent Person does take into account…

Answer 26

● Physical conditions (blind, deaf, amputee)
● Emergencies not of D’s own making considered by jury (e.g., rushing to hospital because child is dying).

Question 27

Reasonable Prudent Person - standard if there is a physical condition present

Answer 27

In this case, D will be held to the standard of a RPP with that condition.

Question 28

Reasonable Prudent Person - standard if there is a emergency not D’s making

Answer 28

Jury can consider emergency to determine if D acted reasonably under the circumstances.

Question 29

VA Business Owner Duty to Invitee Rule

Answer 29

Business owner does NOT have a duty to take positive action to prevent criminal assaults by third parties while invitee in on premises

Question 30

VA Business Owner Duty to Invitee Rule Exception

Answer 30

If business owner knows that criminal assaults are occurring or about to occur on he premises, indicating imminent probability of harm to the invitee

Question 31

VA Commercial Landholders Duty

Answer 31

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

Question 32

VA Landowner duty to people who enter to recreational uses

Answer 32

No duty to care or keep land safe to ingress or egress

Question 33

VA landowner duty who gives permission to enter for rec purposes

Answer 33

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

Question 34

VA Landowner is liable for

Answer 34

Gross negligence or willful or malicious failure to guard or warn against a dangerous condition

Question 35

VA Doctrine of Attractive Nuisance

Answer 35

Does not recognize when danger is open and obvious&raquo_space; only when danger is hidden of latent

Question 36

VA Duty of landlord against third party actors

Answer 36

if heightened degree of foreseeability of future assaults based on prior conduct&raquo_space; if D was aware

Question 37

Hand Formula Factors

Answer 37

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.

Question 38

When do you apply the Hand Formula?

Answer 38

Failure to act as a reasonable prudent person

Question 39

Foreseeability - Duty owed to whom?

Answer 39

ONLY foreseeable victims; NOT unforeseeable victims

Question 40

Unforeseeable Definition

Answer 40

Very far away from the “zone of danger”

Question 41

Reasonably Prudent Person Standard Objectivity

Answer 41

Objective, universal. Make no allowances for the defendant’s shortcomings.

Question 42

Exceptions to the reasonably prudent person standard of care

Answer 42

(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.

Question 43

Age Exception to Standard of Care for under 5 years old (MBE)

Answer 43

no duty of care to the rest of the world

Question 44

Age Exception to Standard of Care for over 5 years old (MBE)

Answer 44

duty of RP child of similar age, experience, and intelligence, acting under similar circumstances.; Fluctuates with every different child and their individual circumstances

Question 45

Age Exception to Standard of Care for child engaged in adult activity (MBE)

Answer 45

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

Question 46

Standard of care for professionals

Answer 46

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

Question 47

Medical Standard of Care Applicability for GPs

Answer 47

Locality standard

Question 48

Medical Standard of Care Applicability for specialists

Answer 48

Experts can come from anywhere.
Standard of care is national.

Question 49

VA Medical Standard of Care Applicability

Answer 49

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.

Question 50

Informed Consent Rules

Answer 50

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

Question 51

Duty to rescue generally

Answer 51

No duty to act affirmatively.
You have no duty to rescue someone in peril.

Question 52

Duty to rescue exceptions

Answer 52

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

Question 53

Lawyers, Architects, Accountants Duty

Answer 53

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.

Question 54

Lack of Informed Consent Traditional Rule for Battery - Doctors

Answer 54

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).

Question 55

Lack of Informed Consent Traditional Rule for Negligence - Doctors

Answer 55

Physician must divulge risks that are customarily divulged by a physician in the same set of circumstances (professional rule).

Question 56

New trend replacing lack of informed consent&raquo_space; standard of materiality

Answer 56

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.