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MBE Bar - Torts > Negligence - Duty > Flashcards

Negligence - Duty Flashcards

1
Q

What is duty?

A

an obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risk.

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2
Q

What is the gneral rule for duty?

A

When the Δ is engaged in affirmative risk creating conduct causing personal injury or property damage, a duty is owed to any foreseeable P

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3
Q

What four areas is duty a significant issue?

A
  1. unforeseeable P (i.e. - rescuer)
  2. non-feasance - failure to intervene to confer a benefit; failure to act
  3. Harm other than personal injury or property damage
  4. Δ is a land possessor, landlord, utility or gov’t entity
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4
Q

What is an unforeseeable P?

A
  • Generally you do not have a duty to an unforeseeable P.
  • Unless where you have rescue - rescuers are owed an independent duty
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5
Q

Does a rescuer owe a duty once they begin to rescue?

A

Δ must act reasonably in effecting the rescue

Some jurisdiction – only liable if leave P in a worse position

Good Samaritan statute -

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6
Q

Where is a duty owed when P is in need of aid?/Is there a duty to rescue or aid?

A

Traditionally no affirmative duty to take action to aid/protect a P from risk of injury

UNLESS such action is taken

EXCEPTION

Traditional - If Δ’s negligent actions place P in peril, then Δ has a duty to act

****NY Traditional - If Δ’s culpable actions place P in peril Δ has a duty to act

Modern (min) – Δ has a duty when Δ’s conduct creates peril even if the conduct was not tortious

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7
Q

What happens if a Δ makes a gratuitous promise (reliance) to aid P?

A

Once Δ attempts to give the promised aid, Δ has a duty to act reasonably in doing so

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8
Q

What constitutes a special relationship for duty?

A

Inn keeper/guest

Common carrier/passenger

Captain/passenger

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9
Q

Is there a duty to rescue?

A

There is no duty to rescue

Except when:

  • Δ’s tortious conduct creates the need for rescue
    • (Δ is negligent, reckless, engages in intentional wrongdoing)
  • when the Δ undertakes to act, they must act reasonably
    • some jurisdictions follow, do not leave P in a worse position
    • Good Samaritan - those who do rescure have to be more culpable before they will be liable
  • Reliance - if Δ promises to do so, & acts, they must do so reasonably
  • Special Relationships
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10
Q

Is a duty owed to rescuers?

A

Yes, they are owed an independent duty

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11
Q

Duty is owed to:

A

Foreseeable Ps (also includes rescuers)

Misfeasance/non-feasance

Special relationships

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12
Q

When do you have non-deasance?

A

Generally, a duty is not owed at all:

(the law does not impose an obligation)

  • duty to rescue or aid
  • duty to warn & control
  • duty to protect
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13
Q

What is the duty to control a 3rd pty or warn 3rd pty (non-feasance)?

A
  • There is no duty to control a 3ed pty or warn a 3rd pty:
    • EXCEPT if there is a special relationship
      • between the Δ and the 3rd pty that imposes a duty on the Δ to control the 3rd pty
      • between Δ & 3rd pty that gives the 3rd pty the right to protection
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14
Q

3rd pty duty

A

must exercise reasonable care

Parent of a child

Master of a servant

Negligent hiring – this is not the same as vicarious liability

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15
Q

Do psychotherapist owe a duty to 3rd pty?

A

Yes, they do. They exercise enough control for where they know of an individuals dangerous propensities they have a duty to warn.

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16
Q

What duty do providers of alcohol have?

A

Traditionally – social host/commercial establishment who served alcohol to person had no duty to 3rd pty they may injure

Dram Shop Act – allows a injured 3rd pty to sue a commercial establishment that served alcohol to a person who they knew or should have known to be intoxicated and knew or should have known they would operate a vehicle causing injury as a result of that intoxication

no jurisdiction has expanded this to social hosts

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17
Q

Is a duty owed under negligent entrustment? (form of misfeasance)

A

Yes there is a duty to any foreseeable P. Arise when the Δ gives something to someone that the Δ know or should have known is incapable of handling the dangerous object given to them

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18
Q

What is the non-feasance category of duty to protect?

A

Generally, no duty to protect someone from 3rd pty criminal attacks UNLESS

there is a special relationship (L/T, business/invitee) AND
there is a heighten level of security

(show prior similar acts like security issues before in same business)

19
Q

Do gov’tal entities owe a duty?

A

Yes, depending on what function they are fulfilling

  • Proprietary function
  • Discretionary activity
  • Ministerial function
20
Q

What is a Proprietary function?

A

Acting in an area traditionally occupied by private actor (i.e. – Landlord) then treated as a private actor & has a duty

21
Q

What is a Discretionary activity?

A

Gov’t making judgments or resource allocations, cts reluctant to impose a duty & leave to legislative powers

22
Q

What is a Ministerial function?

A

If the gov’t undertakes a duty they have to do it correctly
Public duty doctrine – cts will not impose a duty where the police/firefighter is sued for failing to respond EXCEPT if

There is a special relationship between P & gov’t agency AND
Gov’t agency has increased the danger beyond what would have existed

23
Q

What duty is owed by utility? ??????/

A
24
Q

Other than personal injury or property damage, when does a duty arise?

A
  • Emotional distress
  • Pure economic loss
  • Birth of a child
25
Q

What is negligent infliction of emotional distress?

A
26
Q

What are the two theories for a claim of NEID?

A
  • Direct claims
  • Bystander action
27
Q

What is required for a direct claim for NEID?

A

P has to be in the zone of danger (be present)

P had to suffer an accompanying physical manifestation of the emotional distress

Some cts allow for a showing of severe emotional distress eliminating the physical manifestation

EXCEPTION

one suffers emotional distress when receiving a telegram/email informing wrongly about the death of a loved one will recover even if not in the zone of danger or no physical manifestation
can also recover w/o showing these 2 elements when there is a mishandling of a corpse

Minority jurisdictions – apply pre-existing duty test as opposed to the zone of danger

28
Q

What is required for a bystander action of NEID?

A

Arise where the physical harm occurs to a loved one, and the third party bystander sues for his own emotional distress as a result of the injury to the injured loved one.

29
Q

What is needed to recover as a bystander for NEID?

A

Majority rule

  • P has to be present, near the scene & witness,
  • a close relative to the 3rd pty victim &
  • P suffer severe emotional distress as a result of witnessing the event

NY narrows the requirements by:

  • must be in the zone of danger not just present
  • must be an immediate family member not just a close relative
30
Q

What does New York require a bystander to show to recover fror NEID?

A

NY narrows the requirements by:

  • must be in the zone of danger not just present
  • must be an immediate family member not just a close relative
31
Q

­­What is the issue with duty wrongful conception?

A

Arise where there is a healthy, unwanted child as a result of defective contraception or defective sterilization.

Damages can only include for some pain & suffering, costs associated with the birth & some medical costs

32
Q

What is the issue with duty for wrongful birth?

A

Arise where the parents did want the child but the child is unhealthy asserting that the dr failed to diagnosis a disease/condition prior to the birth in which the parents may have determined to end the pregnancy to avoid an unhealthy baby. (i.e. – Down syndrome)

Damages may include the costs for a special needs child but not the cost to take care of the child in general, just the extra expense

33
Q

What is the issue for duty in wrongful life?

A

Arises where the child is suing for even being born. Generally cts do not award damages for this b/c cannot award damages for the fact of having life

34
Q

What is the duty of a land possessor or a landlord?*******

A

The duty of the land possessor depends on:

  1. the category of danger or activity involved in the injury to P AND
  2. the category of the P injured
35
Q

What are the categories of danger or activity that a land possessor can owe a duty for?

A
  1. Activities—the injury to plaintiff derived from the conduct of persons on the land.
  2. Artificial conditions—the injury to plaintiff derived from circumstances created by persons on the land, such as buildings, excavations, cultivation, etc.
  3. Natural conditions—the injury to plaintiff derived from circumstances not created by persons but existing on the land, such as natural bodies of water, trees occurring naturally, falling boulders, etc.
36
Q

What are the categories of plaintiffs that a land possessor can owe a duty to?

A
  1. Invitee
  2. Licencese
  3. Trespasser

New York has eliminated the distinction between the three for the purpose of ascertaining duty

37
Q

Who is considered an invitee?

A

enters Δ’s land with Δ’s express/implied permission and enters that land as:

  • a business invitee 0 confer an econmic benefit
  • a public invitee - land is open to the public

DUTY OWED

  • Δ to exercise reasonable care to prevent injuries cause by activities conducted
  • Δ has to exercise reasonable care to discover dangerous artifical or natural conditions that the invitee would not be reasonable aware of
    • must warn or
    • make area safe
38
Q

Who is considered a licensee?

A

a person who enters Δ’s land with Δ’s express/implied permission but not for the benefit of the Δ (i.e. - friend)

DUTY OWED

  • Δ has a duty to exercise reasonable care to protect licensee from activities by the Δ or done on Δ’s behalf
    • Δ must warn & exercise duty of reasonable care to discover licensees Δ is not aware of
  • Δ has duty to warn of artifical & natural conditions that Δ is aware of but no duty to inspect his land for artifical conditions
39
Q

Who is considered a trespasser?

A

person who enters Δ’s land w/o permission & w/o privilege

DUTY OWED

  • Known trespasser
    • Δ has a duty to exercise reasonable care to protrect trespasser from activities conducted on the land
    • Δ has to exercise reasonable care to warn of known hidden dangers but not for natural conditions
  • No duty to _unknown trespasse_rs; no duty to inspect tha land
  • Frequent trespassers - Δ must warn of artificial dangerous conditions
40
Q

What is the New York recreational use statute in regardless to the duty & liability of a land possessor?

A

New York’s recreational use statute provides limited immunity for landowners from liability based on ordinary negligence if a person engaged in certain recreational activities is injured while using the defendant’s land and the injury was not caused by the defendant’s intentional or wanton act.

41
Q

What is the duty owed to child trespassers?

A

It depends on whther the attractive nuisance doctrine applies:

  • YES - then threated as an invitee & a duty of reasonable care
  • NO - child losses unless there is willful or wanton harm

Have to look @ 5 factors to see if the doctrine applies:

  1. Are children to yound to appreciate the danger
  2. is it foreseeable there will be trespassing children
  3. does the Δ know of the dangerous condition on the property
  4. generally only applies to artificial conditions
  5. is the risk so great to outweigh the utility & burden on Δ
42
Q

What is the minority approach to the duty owed to Ps?

A

A duty of reasonable care is owed regardless of stauts (invitee, licensee, trespasser)

43
Q

What duty is owed by land possessors to those outside their land?

A
  • Artificial Condition
    • owes duty of reasonable care
  • Natural Condition
    • no duty owed UNLESS it is a tree in an urban area
44
Q

What duty is owed between an landlord & a tenant?

A

Landlord is generally not liable but in certain cases they are if:

  • it is a common area in which the landlord retains control
  • the landlord or someone on his behalf conduct negligent repairs
  • the landlord knowns of hidden dangerous conditions not yet discovered by the tenant @ time of lease
  • landlord knows that tenant is going to hold the property open to the public @ large

MBE Bar - Torts (25 decks)

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