Negligence - Duty Flashcards
Define Negligence
Negligence
A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.
Within Negligence, is there a duty to act?
Negligence
No, the general rule is that there is no duty to act.
Are there exceptions to the “no duty to act” rule?
Negligence
Yes, where there are special relationships and under certain circumstances.
What relationships or circumstances create an exception to the “no duty to act” rule?
Negligence
- Contractual Relationships (Nurse/Patient, etc.)
- Assumption of Duty to Act by Acting
- Creation of Peril
- Special Relationships
What happens when one assumes a duty by acting where there is otherwise no duty to act?
Negligence
Assumption of Duty to Act While Acting
- One who gratuitously acts for another is then under a duty to continue the assistance.
- This is because, if one assumes a duty, it could be that others who may have aided didn’t go because of the person assuming the duty.
What special relationships may require a duty to act?
Negligence
Parent/Child, Spouse
Common Carrier/Innkeeper
School/Student
When must a Parent/Spouse assume a duty to act?
Negligence
- Knows of the need to act;
2. Reasonable likely to succeed.
What is the duty to act by Common Carriers/Innkeepers?
Negligence
Duty to use reasonable care to protect passengers or guests.
What is the duty to act by Schools?
Negligence
Duty to protect students within boundaries of school/university.
What is a “creation of peril” duty to act?
Negligence
When one negligently places another in a position of peril, they are under a duty to use reasonable care to
assist.
Is there a statute that encourages healthcare workers and to assist where there is otherwise is no duty to act?
Negligence
Yes, the “Good Samaritan” statute.
Does the “Good Samaritan” statute impose a duty to act?
Negligence
No, it only exempts healthcare professionals who voluntarily help another in an emergency from liability under ordinary negligence.
Who is owed a duty of care?
Negligence
Only foreseeable plaintiffs are owed a duty of care.
Are plaintiff’s generally clearly foreseeable?
Negligence
Yes, plaintiff’s are generally clearly foreseeable.
Is a third party ever a foreseeable plaintiff?
Negligence
Yes, when the breach of duty to one person causes injury to a third party.
Are all third parties foreseeable plaintiff’s?
Negligence
No, only those within the foreseeable “Zone of Danger” (Cardozo).
Note* Cardozo’s Zone of Danger applies only to third parties.
Are rescuers foreseeable plaintiff’s?
Negligence
Rescuer’s are ALWAYS foreseeable plaintiffs because “Danger invites Rescue.” Rescuer’s never assume the risk.
What are the two standards of care in negligence?
Negligence
- General Standard
2. Specific Standard
How is the general standard of care determined?
Negligence
By the reasonable prudent person test.
Under the general standard of care, are physical characteristics taken into account?
Negligence
Yes, under the general standard of care, physical characteristics are taken into account.
Under the general standard of care, are mental characteristics taken into account? Negligence
No, under the general standard of care, mental characteristics are not taken into account?
How is a Specific Standard of Care determined?
Negligence
In many ways depending on the specific situation:
- Custom and Usage
- Emergency Situations
- Children (heavily tested)
- Professionals
- Automobile Guest Statutes
- Common Carriers and Innkeepers
- Bailments
- Control of Third Persons (heavily tested)
- Owners and Occupiers of Land (not on midterm)
Can Custom or Usage be used to determine a specific standard of care?
Negligence
Yes, it may be used to establish a standard of care.
Can Custom or Usage be used to determine whether conduct amounted to negligence?
Negligence
No, custom and usage DOES NOT control question as to whether conduct amounted to negligence.
What is the specific standard of care in Emergency Situations?
Negligence
To act as a reasonable person under the SAME emergency conditions.
Will an emergency be considered if of defendant’s own making?
Negligence
No, an emergency will not be considered if of defendant’s own making.
What is the specific standard of care for Children?
Negligence
Define: Children are held to the standard of a child of like: Age, Education, Intelligence and Experience (AEIE)
What is the specific standard of care if a child is engaged in adult activities?
Negligence
The child is required to conform to an adult standard of care.
Note: On the essay, if it’s a child engaged in adult activities, discuss child standard of care first, then adult standard of care.
How old can a child be measured against the child standard of care?
Negligence
Child standard is up to, and including, are 17.
What is the specific standard of care for Professionals?
Negligence
Professionals are required to possess the knowledge and skill of a member of their profession in good standing in the same or similar localities.
Will professionals who are specialists in their field be held to an even higher specific standard of care?
Negligence
Yes, specialists will be held to a higher degree of care.
As part of the specific standard of care for Professionals, are Doctor’s required to provide informed consent?
Negligence
Yes, a doctor has a duty to disclose risks of treatment to allow patient to make an informed consent.
What are the different circumstances where the specific standard of care for an Automobile Guest Statute might be applied?
Negligence
- Passenger does not pay for ride
2. Passenger pays for ride
When a passenger does not pay for a ride, what duty is owed by the driver?
Negligence
- The driver must warn of known, non-obvious, defects.
2. The driver must drive with reasonable care.
When a passenger pays for a ride, what duty is owed by the driver?
Negligence
Same as for a non-paying passenger with one exception):
1. Warning of known defects (as for a non-paying passenger)
2 Driving with reasonable care (as for a non-paying passenger)
3. The driver must ALSO make reasonable inspections for dangerous conditions.
What is a (State) Specific Automobile Guest Statute?
Negligence
In certain states, one is only liable to nonpaying passengers for reckless, tortious conduct.
Unless otherwise noted on the exam, should we assume the Automobile Guest Statute does not apply?
Negligence
Yes, unless otherwise noted on the exam, assume the automobile guest statutes do not apply.
What is the specific standard of care for Common Carriers and Innkeepers?
Negligence
- An affirmative duty to use reasonable care to aid or assist passengers and guests.
- An affirmative duty to prevent injuries from third parties.
- Required to exercise GREAT care to protect against the slightest negligence.
Does a Common Carrier/Innkeeper have an affirmative duty to use reasonable care to aid or assist passengers and guests?
Negligence
Yes
Does a Common Carrier/Innkeeper have an affirmative duty to prevent injuries from third parties?
Negligence
Yes
Is a Common Carrier/Innkeeper required to exercise great care to protect against the slightest negligence?
Negligence
Yes
Define Bailments
Negligence
A bailment is created when one person (bailor) delivers personal property to another person (bailee).
What is a bailor?
Negligence
A person who delivers personal property.
What is a bailee?
Negligence
A person who receives personal property?
What are the two types of bailors?
Negligence
Unpaid and Paid
Unpaid - Gratuitous Bailment
Paid - Bailment for hire
What duty does a gratuitous bailor have?
Negligence
To inform of dangerous defects in chattel that he knows.
*Think of neighbor lending lawn mower with faulty blade example.
What duty does a bailor-for-hire have?
Negligence
To inform of dangerous defects in chattel that he knows OR should know.
*Think of neighbor lending lawn mower with faulty blade example.
What is the specific standard of care of a bailee when for the sole benefit of the bailor?
Negligence
When for the sole benefit of the bailor - need only exercise slight care.
What is the specific standard of care of a bailee when for the sole benefit of the bailee?
Negligence
When for the sole benefit of the bailee - must exercise great care.
What is the specific standard of care of a bailee when for mutual benefit?
Negligence
When for mutual benefit - bailee must exercise only reasonable care.
What is the specific standard of care for Control of a Third Person (usually children)?
Negligence
An affirmative duty will be imposed to control a third person under certain circumstances.
Under what circumstances would a duty to control a third person be imposed?
Negligence
When one has AAA:
- The ability to control
- The authority to control
- The awareness that the person needs to be controlled.
Are parents vicariously liable for the torts of their minor children?
Negligence
No, parents are not vicariously liable. However, an affirmative duty may be imposed (AAA).
