Negligence (Duty)

Question 1

Duty is what?

Answer 1

a Question of law for the court/judge to decide

Question 2

General Duty rule

Answer 2

we don’t have a duty to anyone

applies to both D’s and P’s

Question 3

Nonfeasance is …

Answer 3

I don’t have to act

 Inaction = failure to act

Question 4

Misfeasance is…

Answer 4

I have to act

Question 5

Limitation to General Duty rule

Creation/increase of a risk of harm rule

Answer 5

 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

Question 6

Limitation to General Duty rule

Rescue Doctrine

Answer 6

 Once you begin to rescueyou have a duty to save the P and you cannot leave them in a worse position than you found them

Question 7

Limitation to General Duty rule

o Special relationship bw the D and the P RULE

Answer 7

With the P which imposes a duty and the scope of the duty is determined by the nature of the relationship

Question 8

Special Relationship bw D and P where P is injured in store setting

Answer 8

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

Question 9

Limitation to General Duty rule

o Special relationship bw the D and the wrongdoer RULE

Answer 9

• 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

Question 10

Limitation to General Duty rule

Statute that creates a duty RULE

Answer 10

 Does statute apply to these parties?
 Does it apply to this type of situation or harm ?
 The burden of taking precaution ?

Question 11

Limitation to General Duty rule

CL Factor/hand Test RULE

Answer 11

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

Question 12

Repair RULE in relation to Duty

Answer 12

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.

Question 13

Social Hosts in relation to Duty

Answer 13

 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

Question 14

Negligent Infliction of ED (NEID)

what is it?

Answer 14

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.

Question 15

NEID as parasitic tort

Answer 15

 Obtained by another tort that involves some physical injury
* Thus if you suffer harm–>you can also file claim with ED

Question 16

NEID CL Barriers

Zone of Danger

Answer 16

P must be within the zone of danger of the D’s act

Question 17

NEID CL Barriers

Physical Impact RULE

Answer 17

• 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

Question 18

NEID CL Barriers

Physical Impact Test

Answer 18

• 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

Question 19

NEID CL Barriers

Bystander Recovery RULE

Answer 19

• 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

Question 20

NIED CL Barrier

Minority RULE

Answer 20

can claim that emotional distress was foreseeable if CL barriers don’t apply

Question 21

NIED on Fear of contracting disease RULE

Answer 21

 For most jurisdictions–> mere fear of contracting disease is not sufficient to have a NEID claim

Question 22

EXCEPTIONS to NIED

Answer 22

  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

Question 23

Duties as Landowner Outside the Premise

Natural Conditions Majority RULE

Answer 23

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

Question 24

Duties as Landowner Outside the Premise

Natural Conditions Minority RULE

Answer 24

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

Question 25

Duties as Landowner Outside the Premise

Artificial Conditions RULE

Answer 25

• You have a duty of due care since you put it there
  o Ex: shooting range, fireworks, dug out pool

Question 26

Duties as Landowner
Inside the Premise

on Trespassers

Baseline rule

Answer 26

if you don’t have notice of trespassers –> you generally don’t owe any duty to trespassers

Question 27

Duties as Landowner
Inside the Premise

Majority view on Known Trespasser:

Answer 27

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

Question 28

Duties as Landowner
Inside the Premise

Majority view on Known Trespasser continued…

Answer 28

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)

Question 29

Duties as Landowner
Inside the Premise

Majority view on Known Trespasser EXCEPTION

Answer 29

if dangerous conditions on premises are visible or obvious to the naked eye to trespasser then landowner does not owe a duty to trespasser

Question 30

Duties as Landowner
Inside the Premise

MINORITY view on Known Trespasser

Answer 30

o even if you know they are on premises –> you have a duty to tell them…?