Neglience (1a) Existence of a Duty (PHR3NEWA) Flashcards
Apply a special rule if one applies, if not dicuss the…
Three Factors
(1) Any relationship between P and D
(2) Whether P was foreseeability at risk
(3) Public policy
(1) could be anything (driver, passenger)
When it applies AND categories
Premise Liability
Applies when: P is hurt by dangerous condition on D’s land
Trespasser, invitees, or licensee
Every slip-and-fall case
Majority Rule (Duty & Exception)
Trespasser
Duty: no duty allowed under any circumstance
Exception: kid trespasser (then owes invitee duty)
Kid Trespasser Exception Factors
4 Factors
- Artificial conditions, man-made only (not natural)
- Doctrine of attractive nuisance – know (or have reason to know) kids will likely trespass
- Know (or have reason to know) condition poses unreasonable risk death/serious harm
- Kid does not know of danger (shouldn’t know)
Majority Rule (Define & Duty Owned)
Invitee
Define: “mutual benefit”… invitation to do business or person is invited onto land for a purpose
Duty Owed: RP (warn/protect) other duty to conditions landowner KNOWS about or SHOULD KNOW about
- Public invitee: open to public (public invited), like museum or park or store
- Business invitee: invited to do business (both want to be there to do business)
Exception: No duty if open/obvious condition (natural conditions only – wind, snow, ice)
Majority Rule (Define, Duty Owned, Exception)
Licensees
Encompasses: everyone else, social guests
Duty Owed: RP (warn/protect) other duty to conditions landowner KNOWS about
“Should know” does not apply
Exception: No duty if open/obvious condition (natural conditions only – wind, snow, ice)
MAJ Rule
Open & Obvious Exception
no duty if dangerous condition is open/obvious (NATURAL)
Applies to invitees and licensees
Minority Rules & Open/Obvious, Premise Liability
Two minority rules for whether duty is owed
(1) Invitee duty to invitees & licensees, no duty to trespassers
(2) Open/obvious: Still duty if open/obvious, open/obvious is relevant to breach
Invitee and Licensee merger under invitee; O&O still applies
Exceptions to the no duty to help/rescue/aid/protect
2 exceptions
(1) Special relationship (employee/employer, common carrier, innkeeper)
(2) Voluntary assumes duty (need act reasonably still)
Protected by Good Samaritan Statue, as long as they act in good faith
Good Samarian Statue does not apply if there is already an pre-existing duty for care (ER)
Rescue Doctrine
Creates a duty – original tortfeasor also owes a duty to rescuer
EXCEPTION – Firefighter’s Rule: Public servants cannot sue for negligence in line of duty
Unless + What Duty is Owed (+special relationsips)
Duty to Protect From Third Parties
No duty to protect third-party UNLESS
1. Special relationship with D and Source of danger OR P
Duty Owned:
RP SOC
Professional SOC: should have known P needs protection
Specal Relationship Examples (different from above):
* Employer-employee
* Therapist-patient
* Dr-patient
* Business-customer
To be NIED, emotional distress needs to be the…
SOLE AND ONLY injury from D’s neglience
Three Tests
Impact Test (Min)
2 parts
(1) P physically impacted (something touched P – physical impact IS NOT physical harm)
(2) [physical manifestation of ED – some states]
Danger Zone (Min)
2 parts
(1) P in immediate zone of physical danger
(2) [physical manifestation - some states]
Think lady and her car got hit by train after it stalled on tracks
Dillon Test (MAJ)
4 parts
(1) Near scene of accident
(2) Sensory (see hear) and contemptuous observance of death/substantial bodily harm
(3) Close (relationship between P and the victim) – close family
(4) [physical manifestation – some states]
(MAJ, Duty Rule)
Economic Loss Doctrine
When P’s only injury is economic – NO DUTY
(think MONEY – loss profits, cash, etc)
**does NOT apply when accompanied with property damage/physical injury
(Definition, Injury, Maj Duty Rule)
Wrongful Pregnancy
Medmal in sterilization (ends up pregnant, when did not want to)
Injury – healthy baby
*Maj: Yes; Professional duty (damages limited to prenatal)
Think: “should not have ended up pregnant”
Can sue doctor and doctor owes duty, but the damages will be limited to prenatal care (no damages for raising the kid)
Duty Owned: professional SOC
(Definition, Injury, Maj Duty Rule)
Wrongful Birth
Medmal in the diagnosis of fetal abnormalities
Injury – lost chance to abort
*Maj: Yes Duty (professional SOC)
Think: “Something was wrong with baby, so should not of been birthed”
(Definition, Injury, Maj Duty Rule)
Wrongful Life
Medmal in diagnosis of fetal abnormalities
Injury = being born (kid’s claim)
*Maj: No Duty
Think: “I, the kid, sues because I was wrongly given life”
Elements (2)
Primary Assumption of Risk
No Duty if…
(1) Risk cannot be eliminated or TOO costly
(2) Obvious, people know about it
(2)**does not need to be obvious to P
taking away a risk makes thing not fun anymore
