Negligence: Duty

Question 1

What are the elements of negligence?

Answer 1

Duty, breach, causation, damages

Question 2

In general, to whom does a defendant owe a duty of care?

Answer 2

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Note: While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty.

Question 3

What is the majority rule about the foreseeability of the plaintiff? (And is it part of duty or causation?)

Answer 3

Cardozo/Majority: A duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct. Cardozo in Palsgraf: the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

Question 4

What is the minority rule about the foreseeability of the plaintiff? (And is it part of duty or causation?)

Answer 4

Andrews/Minority/Restatement: If the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause.

Question 5

Is a person who comes to the aid of another a foreseeable plaintiff?

Is the defendant liable for injuries to a rescuer if the rescuer’s efforts were unreasonable?

Answer 5

Yes. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

To the extent that a rescuer’s efforts are unreasonable, comparative responsibility may reduce the rescuer’s recovery, but does not automatically bar it. (Also note rule about “assumption of duty”: a person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.)

Question 6

May an emergency professional, such as a police officer or firefighter, recover damages from the party whose negligence caused the professional’s injury?

Answer 6

No. Such professionals are barred from so recovering if the injury results from a risk inherent in the job (“firefighter’s rule”).

Applies to:

• firefighters entering burning buildings
• police officers conducting arrests
• paramedics/lifeguards attempting risky rescues

Question 7

When are fetuses owed a duty of care?

Answer 7

Fetuses are owed a duty of care if they are viable at the time that the injury occurred.

Question 8

When does a psychotherapist have an affirmative duty to act to protect a third party?

Answer 8

When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Question 9

In general, there is no affirmative duty to act. However, a duty is imposed in which situations? [RASCCAL]

Answer 9

[RASCCAL]

• Relationship (esp. family or business)
• Authority (family, employment, health care, incarceration)
• Statute
• Creation of risk
• Contract
• Assumption of duty
• Land possessor

Question 10

To what extent do doctors and other medical personnel have a duty when they voluntarily render emergency care?

Answer 10

Some states have enacted “Good Samaritan” statutes to protect doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 11

What special relationships impose an affirmative duty to aid?

Answer 11

Question 12

What special relationships (of authority) impose a duty to control others?

Answer 12

Question 13

Is the defendant’s own mental or emotional disability considered in determining whether his conduct is negligent?

Answer 13

No, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge.

Question 14

If a defendant possesses special skills or knowledge, is she held to a different standard?

Answer 14

Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Question 15

Are intoxicated individuals held to the same standards as sober individuals? (13.8%)

Answer 15

Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.

Question 16

What is the standard of care imposed upon a child:

1. in general, and how is it different from the standard imposed upon an adult?
2. a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car?
3. children of a particularly young age?

Answer 16

1. That of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult.
2. Held to the same standard as an adult.
3. Incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct.

Question 18

For what level of negligence are common carriers and innkeepers liable?

Answer 18

Majority/Common law, historically: Common carriers (e.g., planes, trains, buses) and innkeepers both used to be held to the highest duty of care consistent with the practical operation of the business (liable for “slight negligence,” i.e. “failure to exercise the great degree of care typical of an extraordinarily prudent person”).

Majority today:

• Common carriers: slight negligence
• Innkeeper (hotel operator): ordinary negligence

Third Restatement: common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests.

Question 19

What duty of care do automobile drivers owe to their guests (nonpaying riders) and passengers (those who confer an economic benefit for the ride)?

Answer 19

Majority: Automobile drivers owe ordinary care to their guests as well as their passengers.

Minority: Distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car (i.e. a lower standard for guests). Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Question 20

What duty does a bailor owe a bailee

Question 21

If a plaintiff is injured while on someone else’s land, whose liability is affected (that is, who has a duty to trespassers or licensees):

• The land possessor?
• Easement holders (e.g. a utility company with power lines on the land)?
• Other licensees (e.g. hunters)?

Answer 21

There are rules limiting liability to trespassers or licensees, but only land possessors are protected by them. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee.

Question 22

What kinds of risks are covered by the duty to entrants (invitees, licensees or trespassers) on the possessor’s land?

Answer 22

i) Risks created by the land possessor (and risk-creating conduct);
ii) Artificial conditions on the land;
iii) Natural conditions on the land; and
iv) Risks created when any of the affirmative duties discussed in § IV.B.4. Affirmative Duty to Act, supra, are applicable.

Question 23

Under the traditional approach, what does the standard of care owed to land entrants (invitees, licensees or trespassers) depend upon? How many jurisdictions follow this?

Answer 23

Approximately one-half of all jurisdictions continue to follow traditional rules that provide that the standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser.

Question 24

Under the traditional approach, what is a land possessor’s duty to trespassers, licensees and invitees?

Answer 24

Question 25

Under the modern approach, what does the standard of care owed to land entrants depend upon? What is the Third Restatement version?

Answer 25

Courts in the half of jurisdictions that follow the modern approach (as well as the Third Restatement) require that a standard of reasonable care applies to all land entrants except trespassers, abolishing the distinction between invitees and licensees.

In the case of the Third Restatement, the rule applies to all land entrants except for “flagrant” trespassers.

Question 26

What is the standard of care that land possessors must use with respect to artificial conditions or conduct on the land?

What is the standard of care that land possessors must use with respect to natural conditions on the land? What is the exception?

Answer 26

The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land.

As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas.

Question 27

If the only purpose of a warning (of a danger on land) would be to provide notice of a danger that is open and obvious, is there liability for failing to provide such a warning?

Answer 27

No. When the danger is open and obvious to the entrant, a warning will ordinarily not provide additional protection against harm. Consequently, if the only purpose of a warning would be to provide notice of a danger that is open and obvious, there is no liability for failing to provide such a warning.

In addition, even when a warning is required, an entrant who encounters an obviously dangerous condition and fails to exercise reasonable self-protective care is contributorily negligent