Negligence Duties

Question 1

What is negligence?

Answer 1

• Harm done to someone through the failure of another to exercise a certain level of care

Question 2

What are the elements of negligence?

Answer 2

• Duty of care
• Breach of duty
• Causation
• Harm

Question 3

What legal duty does one person have to another?

Answer 3

• D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.

Question 4

To whom does a person possess this legal duty of care?

Answer 4

• D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence (foreseeable P)

Question 5

Are rescuers owed a duty of care?

Answer 5

• Yes, professional rescuers are owed an independent duty of care because they are per se foreseeable plaintiffs who may get injured by D’s negligence
• Nonprofessional rescuers are also foreseeable P’s as a matter of policy and can recover against negligent party creating need.

Question 6

Can negligence take place through nonfeasance?

Answer 6

• Yes. Nonfeasance is the failure to intervene or confer a benefit on the plaintiff, and this failure can constitute a breach of a duty of care

Question 7

Is there a duty to rescue?

Answer 7

• There is generally no duty to rescue or aid, except when D’s tortious conduct creates need to rescue or there is a special relationship of dependence:
  o EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of the center line. Polly tries to avoid him and drives off the bridge. Dexter has a duty to rescue because his tortious conduct created the need for rescue.

Question 8

What are examples of special relationship in which rescue would be required?

Answer 8

• Carrier-passenger relationship
• Inn keeper-guest relationship
• Captain-passenger relationship
• Drinking buddies

Question 9

What does the common law require from people who attempt to rescue?

Answer 9

• At common law, if a person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably.
  o EXAMPLE: Delilah is hiking on a remote trail and sees a hiker in distress at the bottom of a canyon. Delilah has no obligation to rescue, but if she undertakes a rescue she cannot then hike away if doing so would leave the hiker in a worse position than he would have been if she hadn’t stopped at all.

Question 10

What kinds of laws are distinguished from the common law with respect to the duty to rescue?

Answer 10

• Many states have Good Samaritan statutes that protect a rescuer unless she is reckless or engages in intentional wrongdoing.

Question 11

Is there a duty to control the actions of third parties?

Answer 11

• There is generally no duty to control the conduct of a third party as to prevent harm to another.

Question 12

Under what exception would there exist a duty to control third parties?

Answer 12

• When a special relationship between D and the third party gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.
  o EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. The prison has a duty to warn people in the neighborhood.
  o EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him with them. She must warn the babysitter.
  o EXAMPLE: Psychotherapist exercises enough control that when they know of the patient’s dangerous propensity, there is a duty to warn a specific party who might be in danger.

Question 13

Do providers of alcohol owe a duty of care under the common law?

Answer 13

• Traditional Rule: Purveyor not responsible for DUI injuries.

Question 14

Under what exception do alcohol providers owe a duty of care?

Answer 14

• Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.

Question 15

Do the Dram Shop Acts apply to social hosts who serve alcohol?

Answer 15

• These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.

Question 16

What constitutes negligent entrustment?

Answer 16

• When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).

Question 17

Is there a general duty to protect?

Answer 17

• Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:
  o Special relationship: landlord/tenant, business/invitee.
  o Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third party criminal conduct particularly foreseeable.

Question 18

Do governmental entities owe legal duties, and if so when?

Answer 18

• Whether a duty is owed depends on function:
  o Proprietary function
  o Discretionary activity
  o Ministerial function
  o Public duty

Question 19

What duty does a governmental entity owe when they perform a proprietary function?

Answer 19

• Proprietary Function (acting in private area): Treated as any other D for duty analysis.

Question 20

What duty does a governmental entity owe when they perform a discretionary activity?

Answer 20

• Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty.

Question 21

What duty does a governmental entity owe when they perform a ministerial function?

Answer 21

• Ministerial Function: Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident).

Question 22

What duty of care does a governmental entity owe when they perform a public duty?

Answer 22

• Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
  o there is a special relationship between P and the agency; or
  o the agency has increased the danger beyond what would otherwise exist.