Negligence - Duty

Question 1

Negligence - rule

Answer 1

failure to exercise reasonable care; breach of the duty to prevent a foreseeable risk of harm to anyone in P’s position; breach must be the cause of P’s injuries

Question 2

Negligence - elements

Answer 2

1. duty
2. breach
3. causation
4. damages

Question 3

Duty - rule

Answer 3

owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care

foreseeability of harm to another sufficient to create general duty to act with reasonable care

Question 4

Is there a duty to act?

Answer 4

No, generally no duty to act

Question 5

What are M/m rules on the foreseeability of harm to P?

Answer 5

M: d only liable to Ps within the zone of foreseeability

m: if D can foresee harm to ANYONE resulting from his negligence, D owned duty to everyone harmed

Question 6

Foreseeability of rescuers - rule

Answer 6

D liable for negligently putting rescuer/rescued party in danger

• emergency professionals barred from recover IF injury results from risk of the job

Question 7

Foreseeability of fetuses

Answer 7

duty of care owned to fetuses viable at time of injury

Question 8

Exceptions to no affirmative duty to act

Answer 8

1. assumption of duty
2. placing another in peril
3. by contract
4. by authority
5. by relationship (employer-employee, parent-child, common carrier-passenger)
6. statute imposing an obligation to act

Question 9

reasonably prudent person - rule

Answer 9

1. objective standard
2. physical characteristics are considered in determining the reasonableness
3. voluntarily intoxicated person held to the same standard as a sober person

Question 10

Is there a different standard of care for children?

Answer 10

reasonable child of similar age, intelligence, and experience

EXCEPTION: child engages in a high-risk adult activity held to an adult standard

Note: children under age of 5 generally found incapable fo negligent conduct

Question 11

Standard of care - common carriers

Answer 11

the highest duty of care consistent w/practical operation of the business

Question 12

Standard of care - innkeepers

Answer 12

ordinary negligence (majority)

slight negligence (common las)

Question 13

Standard of care - car driver

Answer 13

M: ordinary care to guests as well as passengers

m: refrain from wanton & willful misconduct

Question 14

Standard of care - bailor (giving item)

Answer 14

Gratutitous - duty to warn bailee of known dangerous defects

Compensated - duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence

Question 15

Standard of care - bailee (receiving item)

Answer 15

Gratuitous - liable only for gross negligence

Compensated - must exercise extraordinary care

Mutual benefit - must take reasonable care

Question 16

Standard of care - sellers of real property

Answer 16

duty to disclose known, concealed, unreasonably dangerous conditions

liability to 3rd parties continues UNTIL buyer has a reasonable opportunity to discover and remedy the defect

Question 17

Standard of care - general trespassers

Answer 17

M: refrain from willful, wanton, reckless, or intentional misconduct toward trespassers (no spring-guns)

Question 18

Standard of care - discovered trespassers

Answer 18

warn or protect against concealed, dangerous, artificial conditions

Question 19

Standard of care - undiscovered trespassers

Answer 19

generally, no duty unless owner should reasonably know that trespassers are entering the land, then same duty owned a licensee

Question 20

Attractive nuisance - rule

Answer 20

liable for injuries to trespassing children IF

1. artificial condition poses
2. unreasonable risk of serious bodily injury,
3. children cannot appreciate the danger,
4. burden of eliminating danger slight compared to risk of harm, AND
5. owner fails to exercise reasonable care to protect children

Question 21

Standard of care - invitee (tradition/majority rule)

Answer 21

1. reasonable care to INSPECT, discover dangerous conditions, and protect invitee from them
2. non-delegable duty
3. duty does not extend beyond scope of the invitation

Question 22

Invitee - definition

Answer 22

invited to enter for purposes for which the land is held open or for business purposes

Question 23

Recreational land-use - rule

Answer 23

Some jurisdictions

possessor who opens land to public for recreation generally NOT liable for i njuries sustained by recreational land users UNLESS

1. charges a fee OR
2. acts willfully, maliciously r with gross negligence

Question 24

Licensee - definition

Answer 24

enters the land of another with permission or privilege (social guests; emergency personnel)

Question 25

Standard of care - licensee (traditional/majority)

Answer 25

1. WARN of concealed dangers that are known or should be obvious
2. use reasonable care in conducting activities on the land
3. NO duty to inspect

Question 26

Modern approach for standard of care for people who enter land (minority)

Answer 26

reasonable care under ALL circumstances; no invitee/licensee distinction

fact of trespass considered by jury in determining reasonable care

Question 27

Third Restatement Approach for the standard of care for people who enter land

Answer 27

duty NOT to act in an intentional, willful, or wanton manner causing physical harm is ONLY duty owned to a flagrant trespasser

Question 28

When is a landlord liable?

Answer 28

landlord is liable for injuries occurring in

1. common areas resulting from hidden dangers about which landlord fails to warn,
2. on-premises leased for public use,
3. as a result of a hazard caused by negligent repair, OR
4. involving a hazard landlord agreed to repair

Question 29

When is a tenant liable?

Answer 29

tenant liable for injuries to third parties due to conditions within tenant’s control

Question 30

Is anyone liable for off-premise victims?

Answer 30

distinction mostly between natural and artificial conditions:

there is no duty for harm by natural conditions (except rotting trees in urban areas)

duty to prevent unreasonable risk of harm caused by an artificial condition