Negligence (Duty) Flashcards
Duty is what?
a Question of law for the court/judge to decide
General Duty rule
we don’t have a duty to anyone
applies to both D’s and P’s
Nonfeasance is …
I don’t have to act
Inaction = failure to act
Misfeasance is…
I have to act
Limitation to General Duty rule
Creation/increase of a risk of harm rule
1. Duty to act and creating a risk of harm
* Did the D create the risk of harm?
2. OR Duty when you increase the risk of harm
* If D didn’t create the risk of harm, did they increase the risk of harm?
* If they did increase–>then they have a duty
Limitation to General Duty rule
Rescue Doctrine
Once you begin to rescueyou have a duty to save the P and you cannot leave them in a worse position than you found them
Limitation to General Duty rule
o Special relationship bw the D and the P RULE
With the P which imposes a duty and the scope of the duty is determined by the nature of the relationship
Special Relationship bw D and P where P is injured in store setting
o When there is a danger of an instrumentality present–> you have a duty to not aggravate the injury of the –> if they somehow were injured under your care follows the rescue doctrine
Limitation to General Duty rule
o Special relationship bw the D and the wrongdoer RULE
- The law will also create a duty to P or wrongdoer so you must act
o ex. doctor/patient’s significant other, family, Friends
Where the unidentified victim cannot be identified court is unlikely to impose a duty on D owed to unidentified victim –>must be a foreseeable victim
Limitation to General Duty rule
Statute that creates a duty RULE
Does statute apply to these parties?
Does it apply to this type of situation or harm ?
The burden of taking precaution ?
Limitation to General Duty rule
CL Factor/hand Test RULE
Weighing the :
* Probability of harm–>especially looked at to find foreseeability for duty
* Severity of harm
* Burden of taking precautions
* Availability of alts forms of conduct that involve less risk
* Social utility of D’s conduct
Most likely just have to look at the first 3 factors
Repair RULE in relation to Duty
an individual who undertake to make a repair owes a duty to use due care to those may be foreseeably injured in case the repair is negligently made
* When there is an assurance to an owner that a repair has been made even though nothing has in fact been done, many modern courts have found misfeasance and thus a breach of duty even to third parties.
Social Hosts in relation to Duty
Majority approach: Social Hosts are not liable bc they don’t owe a duty
Minority approach: Social Hosts are liable bc they owe a duty
Negligent Infliction of ED (NEID)
what is it?
o Negligence not resulting in physical injuries or damages to the P that creates emotional distress. Traditionally, Π would only recover for emotional distress if it followed a physical injury.
NEID as parasitic tort
Obtained by another tort that involves some physical injury
* Thus if you suffer harm–>you can also file claim with ED
NEID CL Barriers
Zone of Danger
P must be within the zone of danger of the D’s act
NEID CL Barriers
Physical Impact general RULE
- RULE: You cannot recover unless there is a physical impact resulting in a physical injury
- Traditional majority rule is that they require physical impact
o FL follows this rule
o Some courts vary on what constitutes a physical impact
NEID CL Barriers
Physical Impact RULE Test
- TEST: Where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct, –>then a plaintiff may be able to recover damages notwithstanding the absence of any physical impact
o Injury must be something like losing hair, twitching…must be serious physical manifestations of injury
o Not like losing weight
o And something like self-harm to yourself could be a IC and difficult to establish causation, especially if you have prior history of self harm
NEID CL Barriers
Bystander Recovery RULE
- 1) Present at the scene
- 2) Have to have knowledge that or aware that injury is occurring
- 3) AND closely related
Has to be more than just acquaintances or friends
NIED CL Barrier
Minority RULE
can claim that emotional distress was foreseeable if CL barriers don’t apply
NIED on Fear of contracting disease RULE
For most jurisdictions–> mere fear of contracting disease is not sufficient to have a NEID claim
EXCEPTIONS to NIED
does not need to prove NEID when:
- Telegram rule: if one informs another of a death in a negligent manner when announcing death
o Died but didn’t–> NEID recovery - OR Mishandling of a corpse –> NEID recovery
Duties as Landowner Outside the Premise
Natural Conditions Majority RULE
you don’t owe a duty to people outside of your premises for natural conditions that are on your land
o Exception: rules regarding trees
If you know or should’ve known that it posed a risk, then there’s a duty to inspect the defect
Duties as Landowner Outside the Premise
Natural Conditions Minority RULE
o if your tree is in a rural area–> there is no duty.
o If it is in an urban setting,–>there can be a duty
Duties as Landowner Outside the Premise
Artificial Conditions RULE
- You have a duty of due care since you put it there
o Ex: shooting range, fireworks, dug out pool
Duties as Landowner
Inside the Premise
on Trespassers
Baseline rule
if you don’t have notice of trespassers –> you generally don’t owe any duty to trespassers
Duties as Landowner
Inside the Premise
Majority view on Known Trespasser:
o If you have notice of known trespasser you generally don’t owe a duty to them, but you cannot intentionally willfully or wantonly injure them
Think how putting a spring gun just to get even with a known trespasser
Duties as Landowner
Inside the Premise
Majority view on Known Trespasser continued…
o If you have notice of known (frequent or tolerated) trespasser then you have a duty to warn them of dangerous conditions you knew or should have known that they are there (Hidden dangers known to landowner)
Duties as Landowner
Inside the Premise
Majority view on Known Trespasser EXCEPTION
if dangerous conditions on premises are visible or obvious to the naked eye to trespasser then landowner does not owe a duty to trespasser
Duties as Landowner
Inside the Premise
MINORITY view on Known Trespasser
o even if you know they are on premises –> you have a duty to tell them…?
Duties as Landowner inside the premises
constant Trespassers
o If they are constant trespassers –> then D owes them a duty bc they now know or should have known they are constant trespassers
Duties as Landowner inside the premises
Licensees
what are they?
- A social guest is considered a licensee and is defined as one who enters the owner’s premises by implied or express permission bought for his own purposes
o Therefore, a social guest is someone who goes on to another’s property for companionship and entertainment for their own purpose
Duties as Landowner inside the premises
Licensees rule
- The duty owed to licensee is once they are on property you have a duty to warn them of known hidden dangerso What if you don’t know they are on your property–>they are treated the same as trespassers –> thus duty is you cannot willfully or wantonly injure them
Duties as Landowner inside the premises
Licensees rule on emergency responders
- Emergency responders such as cops or firefighters are treated as licensees
Duties as Landowner inside the premises
Invitees
what are they?
- A person who are present on public land or are there on property with some economic benefit to the owner
o Can be current or prospective economic benefit to owner: such as potentially buying something
Duties as Landowner inside the premises
Invitees RULE
- The duty owed to invitees is the duty of reasonable care therefore owner must keep premises safe so they must know or should know of hidden dangers
- In FL Police and firefighters are classified as invitees
Attractive Nuisance Doctrine
dealing with children
Allows trespassing children who have been injured by an artificial dangerous condition on the land to recover if:
o 1. Possessor knows or has reason to know that children are likely to trespass on the property
o 2. Possessor knows or has reason to know that the artificial condition involves an unreasonable risk of causing serious bodily injury or harm to the children
o 3. b/c of child’s youth, age, or immaturity, child fails to appreciate the danger or realize the risk involved
o 4. And the utility of maintaining the dangerous condition does not outweigh the risks involved
