Negligence Duties Flashcards
What is the reasonable person standard?
standard of conduct that actors must conform to in order to avoid liability for negligence that is of a reasonable man under the circumstances
objective hypothetical person
What is a reasonable person standard for someone with a disability?
those with a disability are held to the same standard of care that a reasonable person would have had he had such a disability
What is a reasonable person standard for someone who is intoxicated?
NOPE
refusal of courts to many any allowance for voluntary intoxication
What is a reasonable person standard for children?
in general, it is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances
unless the activity performed is a dangerous adult activity, in which case a child is held to an adult standard of care
What is a reasonable person standard for physical and mental incapacity?
sudden physical incapacity (heart attack, seizure, fainting) works as an excuse for negligence (unless the incapacity was foreseeable - aka forgot to take meds)
a mentally ill person can be liable for negligence even if it is sudden onset (minority rule in Wisconsin allowing a person to avoid liability if sudden onset)
What is a reasonable person standard for driving?
a driver must be aware of flaws and faults that would be noticed under a reasonable inspection
BUT, if unforeseeable defect/flaw probably not liable
What does it mean to be put on notice?
negligent when the defendant is put on notice and doesn’t do anything to mitigate the harm
(Pipher v Parsell)
What is a professional standard of care?
one who engages in a profession must exercise learning, ability, and skill of an ordinary and reasonable member of that profession. not average. objective minimum standard.
often requires expert witness
NOT applicable to teachers or clergy
What are customs?
evidence of a customary practice and usage may be used as evidence of what a reasonable person would do in the same circumstances (but is not a duty in itself)
What is the standard of care for a person in an emergency?
an event that is unforeseen, unexpected, and not created by actor’s negligence
a person in an emergency is not expected to exercise the same standard of care as someone who is not in an emergency
What is the standard of care for lawyers?
lawyers held to the learning/skill/ability, best judgement, and ordinary and reasonable diligence
no duty to someone who isn’t their client
What is the standard of care for doctors?
standard of professional reasonable care is measured by a national standard
but, consider what supplies/equipment are actually available to them
and, compare specialized doctor to other specialized doctor
What are the elements of informed consent?
(1) defendant physician failed to inform patient adequately of material risk
(2) plaintiff, if informed of material risk, would not have consented
(3) adverse consequences not made known to plaintiff occurred as a result of treatment
note also that doctor’s most disclose their own interest in the case (if they are doing research in the field)
What is the duty of care required for someone outside your premises?
natural conditions - no duty to alter natural conditions to protect those outside of the premises, except for when you’re on notice of potential harm (trees obviously decayed in urban area)
artificial - owner must exercise reasonable care for those outside of the premises
What is the duty of care required for trespassers?
no duty of care except to not wantonly or willingly injury
except when presence has been discovered or tolerated intruder - then reasonable duty of care
trespasser assumes all risk
What is the duty of care required for a licensee?
licensee is someone who is there for their own benefit (social guest)
licensee must take premises as they find them
owner has duty to warn of hidden dangers and must refrain from willful/reckless behavior
What is the duty of care required for an invitee?
invitee is someone there for the owner’s benefit (think business) or is in a place open to the public
duty to exercise reasonable care to address known hazards (warn or eliminate) to keep premises reasonably safe (inspections)
consider what defendant knew and what defendant should have known
What is attractive nuisance?
owner may be liable for injuries to children who trespass to land or chattel if the injury results from a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition
Invitees and Licensees special circumstances
police and firemen - licensees (assumed risk of obvious harm but are entitled to know of hidden or dangerous conditions)
mail carriers and garbage collectors - invitees because they are there to benefit owner
Is there generally a duty to warn or rescue?
no general duty to warn or rescue
failure to act is not a breach of a duty
What are some exceptions to the general rule that there is no duty to warn or rescue?
hint: there are 4
when actor created the risk - they then have duty to exercise reasonable care to minimize/prevent harm
when actor and plaintiff have a special relationship where a person has a duty to take measures against risks posed by another to a third party (employer-employee, parent to protect others against their child, automobile owner-driver, people in charge of criminals)
when the actor has specialized knowledge or special reason to know a particular plaintiff would suffer a particular type of injury (husband-wife child abuse case, psychotherapists)
instrumentality under control - legal duty to take affirmative steps of reasonable care when the injury to another person resulted from an instrument under your control
