Negligence

Question 1

Elements of Negligence

Answer 1

The elements of a prima facie case of negligence are:
(1) A duty on part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
(2) A breach of that duty by D
(3) The breach is the actual & proximate cause of P’s injury
(4) Damages

Question 2

DOC Owed Only to Foreseeable P’s

Answer 2

A DOC is owed only to foreseeable P’s—the class of people who were foreseeably endangered by the D’s negligent conduct

Question 3

Rescuers

Answer 3

• A rescuer is a foreseeable P when D negligently put themselves/3rd person in peril (danger invites rescue).
• Firefighter’s Rule:
  Firefighters & police officers are barred from recovering for injuries caused by the inherent risks of their jobs.

Question 4

Prenatal Injuries

Answer 4

• A DOC is owed to a viable fetus.
• In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” but the parents may recover damages in a “wrongful birth” or “wrongful pregnancy” action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.

Question 5

Intended Beneficiaries of Economic Transactions

Answer 5

A 3rd party for whose economic benefit a legal/business transaction was made (ex: a beneficiary of a will) may be a foreseeable P.

Question 6

Basic Standard of Care - The Reasonably Prudent Person

Answer 6

• All persons owe a duty to behave with the same care as a RPP to avoid injuring foreseeable victims.
• Measured against what the average person would do.
• D’s mental deficiencies & inexperience are
  not taken into account (low intelligence is no excuse).

Question 7

Exception for Superior Skill/Knowledge

Answer 7

While the RPP standard sets a min level of care, a D who has knowledge/experience superior to that of an average person is required to exercise that experience.

Question 8

Exception for Physical Characteristics Where Relevant

Answer 8

• The “RPP” is considered to have the same physical characteristics as D if those physical characteristics are relevant to the claim
• one is expected to know one’s physical abilities and to exercise the care of a person with such knowledge
  (ex. a blind person should act as a RPP who cannot see and not attempt to drive a car).

Question 9

Special Negligence Duties Based on Type of D: Children

Answer 9

• Children are held to the standard of a child of like age, intelligence, and experience.
• This is a subjective test. A child under 5 is usually w/o the capacity to be negligent.
• Children engaged in potentially dangerous adult activities may be required to conform to an “adult” SOC.

Question 10

SNDBTD: Professionals

Answer 10

• A professional is required to possess the knowledge & skill of an average member of the profession/occupation in good standing.
• For doctors, most cts apply a national SOC to evaluate their conduct.

Question 11

Professionals: Duty to Disclose Risks of Treatment

Answer 11

• A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent.
• A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

Question 12

Possessors of Land

Answer 12

-Duty owed to a P depends on the P’s status as unknown trespasser, known trespasser, licensee, or invitee.

Question 13

Unknown Tresspassers

Answer 13

• No duty is owed to an undiscovered trespasser

Question 14

Known Trespassers

Answer 14

• As to discovered/anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
• Artificial
• Highly dangerous (involving risk of death or serious bodily harm)
• Concealed
• Known to the land possessor in advance

Question 15

Licensees

Answer 15

• A licensee is one who enters onto the land with the possessor’s permission for their own purpose/business, rather than for the possessor’s benefit.
• Social guests are considered licensees. (Although firefighters and police officers are typically licensees because they often enter property with implied consent, on public policy grounds, they are owed no DOC regarding risks that are inherent in their job.)
• As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:
• Concealed
• Known to the land possessor in advance
• The land possessor must exercise reasonable care in
  the conduct of “active operations” on the property.
• Possessor has no duty to inspect/repair

Question 16

Invitees

Answer 16

• Invitees enter onto the land by invitation of land possessor
• Invitee loses invitee status if scope of invitation is exceeded
• Duty regarding hazardous conditions that are:
• Concealed
• Known to the land possessor in advance/could have been discovered by a reasonable inspection

Question 17

Trespassing Children: Attractive Nuisance Doctrine

Answer 17

• Land owners have the duty to use ordinary care to avoid a reasonably foreseeable risk of harm to kids caused by dangerous artificial conditions on their property.
• To establish the doctrine’s applicability, P must show:
  (1) A dangerous condition on the land that owner is/should be aware of
  (2) The owner knows/should know that kids might trespass on the land
  (3) The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk)
  (4) The expense of remedying the situation is slight compared with the magnitude of the risk

Question 18

AND: TIP

Answer 18

For liability to attach, the requirements above must be shown. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Question 19

Duty Owed to Users of Recreational Land

Answer 19

A landowner who allows the general public to use their land for recreational purposes w/o charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully & maliciously failed to guard against/warn of a dangerous condition/activity

Question 20

Duty of Possessor to Those Off Premises

Answer 20

• No duty to protect someone off the premises from natural conditions on the premises
• However, there is a duty for unreasonably dangerous artificial conditions/structures abutting adjacent land.
• One must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.

Question 21

Duties of Lessor & Lessee of Realty

Answer 21

• Lessee: has a general duty to maintain the premises.
• Lessor: must warn of existing defects that they are aware of/have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection.
• If the lessor covenants to repair, they are liable for unreasonably dangerous conditions.
• If the lessor volunteers to repair and does so negligently, they are liable.

Tip: If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don’t stop there—remember that the tenant may also be liable to the guest because of the tenant’s status as the owner/occupier of the premises.

Question 22

Duties of Vendor of Reality

Answer 22

• A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Question 23

Statutory Standards of Care

Answer 23

• A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the CL duty of due care if:
  (1) The P is within the protected class
  (2) The statute was designed to prevent the type of harm suffered by P

Question 24

SSOC: Excuse for Violation

Answer 24

• Violation of some statutes may be excused where compliance would cause more danger than violation/where compliance would be beyond D’s control.

Question 25

SSOC: Effect of Violation/Compliance

Answer 25

- Under the majority view, an unexcused statutory violation is negligence per se - It establishes duty and breach of duty. - In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

Question 26

Affirmative Duites to Act

Answer 26

- Generally, one does not have a legal duty to act. - There is no duty to rescue. - Exception: A special relationship between parties (ex. parent-child) may create a duty to act. - Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid/assist their patrons. - In addition, places of public accommodation have a duty to prevent injury to guests by 3rd persons. - Exception: One has a duty to assist someone they have negligently/innocently placed in peril.

Question 27

Assumption of Duty by Acting

Answer 27

- One may assume a duty to act by acting (ex. once D undertakes to aid someone, they must do so with reasonable care). - Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Question 28

Duty to Prevent Harm from 3rd Persons

Answer 28

- Generally, there is no duty to prevent a third person from injuring another. - An affirmative duty may be imposed if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Question 29

Common Carriers & Innkeepers

Answer 29

- Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence. - Tip: For the higher common carrier and innkeeper standards to apply, P must be a passenger/guest.

Question 30

Automobile Driver to Guest

Answer 30

- A guest in a car is owed a duty of ordinary care.

Question 31

Bailment Duties

Answer 31

- In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (ex. bailor loans their car to bailee).

Question 32

Duties Owed by Bailee

Answer 32

- The bailee’s standard of care depends on who benefits from the bailment: (1) for a sole benefit of the bailor bailment, there is a low standard of care; (2) for a sole benefit of the bailee bailment, there is a high standard of care; and (3) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. - The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.

Question 33

Duties Owed by Bailor

Answer 33

- For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. - For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.

Question 34

Emergency Situations

Answer 34

- D must act as a RPP would under the same emergency conditions. - The emergency is not to be considered, however, if it is of the D’s own making.