Negligence - Duty

Question 1

Negligence - Definition

Answer 1

failure to exercise that degree of care and caution which a reasonable and prudent person would exercise under like conditions and circumstances.

Question 2

Negligence - Elements

Answer 2

1. Duty to use reasonable care. Actor is to conform to a certain standard of conduct for the protection of others against unreasonable risk.
2. Breach of duty - Failure to conform to the required standard, i.e., engaging in conduct which exposes others to an unreasonable risk of harm
3. Causation:
   a. Actual cause (“but for” or “substantial factor” tests).
   b. Proximate cause. Reasonably close causal connection between the conduct and the resulting injury.
4. Damage - actual loss or damage is required as part of prima facie case.

Question 3

Duty - Both Types

Answer 3

1. To conduct oneself as a reasonable and prudent person would under the same or similar circumstances. This is the duty of due care.
2. Some special duty imposed by statute, special relationship or case law which may be in addition to or in place of the duty of due care.

Question 4

When Does Duty Arise and Who is it Owed To?

Answer 4

1. If there is no foreseeable risk to anyone there is no duty (Palsgraf - Cardozo and Andrews agree).
2. If there is a foreseeable risk.
   a. Cardozo - duty is owed to those in the zone of danger.
   b. Andrews - if duty is owed to one it is owed to all.

Question 5

Rescuers and duty

Answer 5

If there is a special relationship there is a duty.

1. A duty exists if defendant puts someone in peril by creating the peril; or 2. Defendant makes the situation worse. If voluntarily undertake to aid the plaintiff defendant must do so reasonably; or
3. Defendant prevents others from coming to the aid of the person in peril; or 4. Special relationship exists (parent/child, employer/employee, host/guest, jailer/prisoner).

Question 6

Legal Relationship

Answer 6

See Winterbottom v. Wright; MacPherson v. Buick Motors; Moch v. Rensselaer; Clagett v. Dacy

Question 7

Owners/Occupiers of Land - What duty is owed to those outside the premises?

Answer 7

Owner or occupier of land is required to exercise reasonable care with regard to affirmative activities on the land, with regard to construction or demolition of buildings, digging or excavations and inspecting and keeping the premises in repair.

Question 8

Owners/Occupiers of land - Condition of land

Answer 8

Majority: no affirmative duty to remedy conditions which are purely natural or of natural origin. Minority: duty of due care is owed if defendant has actual or constructive notice of the dangers the natural condition poses.

Question 9

Owners/Occupiers of Land - Dangerous Tress

Answer 9

If the area is rural, the owner is not required to inspect and make sure every tree is safe but if danger is known the owner may be required to take affirmative steps to eliminate the danger. If the area is urban, the owner is required to take steps including inspection to make sure the tree is safe. Some jurisdictions reject the distinction between rural and urban and apply the duty to act reasonably

Question 10

Conduct of others

Answer 10

1. Duty exists for acts of employees within the course and scope of their employment.
2. Duty exists if landowner permits others to enter land who create an unreasonable risk of harm (but not trespassers unless landowner has knowledge of the activity or should have had knowledge of the activity of trespasser).
3. Landowner may have duty regarding acts of independent contractors, depending on the type of activity.

Question 11

Duty to those on the Premises - Trespasser

Answer 11

on land without the consent of the landowner. No duty except if defendant willfully injures the trespasser. If the trespasser is discovered or is a constant trespasser to a limited area, a duty exists to warn or make safe artificial conditions or affirmative activities. But there is no duty to warn of that which the trespasser is aware

Question 12

Duty to Those on the Premises - Licensee

Answer 12

on land of another for his/her own purposes. Landowner must warn or make safe conditions of which the landowner is aware. Landowner must also warn or make safe the acts of third persons on the land and refrain from willfully injuring the licensee. But there is no duty to inspect for or warn of dangers of which the landowner is not aware

Question 13

Duty to Those on the Premises - Invitee

Answer 13

on land for business which concerns and benefits the occupier. Landowner must inspect for and warn of hidden dangers. In some jurisdictions a warning sign is not sufficient and the duty extends to make the situation safe. But there is no duty regarding dangers known to the invitee or conditions about which the landowner did not know or reasonably could not have anticipated through inspection

Question 14

Duty to Those on the Premises - Minority view

Answer 14

Merging of categories. Duty is not dependent upon status. Rather the landowner owes a duty of reasonable care to persons who enter the premises

Question 15

Lessors and Lessees

Answer 15

– the lessor owes a duty regarding undisclosed conditions of the property, dangers to those outside the premises, parts of the leased property remaining within the control of the lessor, if lessor contracts to repair and is negligent in making those repairs. Query – what duty to lessors owe with respect to criminal activities on the leased premises

Question 16

Children

Answer 16

attractive nuisance doctrine. A duty is owed with respect to a temptation which reasonably leads to danger. Under these circumstances, a duty of ordinary care is owed to protect children from harm.

1. Foreseeability of trespass.
2. Foreseeability of harm.
3. Risk outweighs the utility of the condition.
4. Child is unaware of the danger.