Negligence-Duty

Question 1

What are elements?

Answer 1

1) duty on part of D to conform to a specific standard of conduct to protect P against unreasonable risk of injury
2) breach of that duty
3) causation (both actual/factual and proximate)
4) damage

Question 2

To whom do you owe a duty? Exceptions

Answer 2

to foreseeable victims of carelessness and foreseeable victims only

Exceptions:

• rescuers are not barred by foreseeability rule: rescuers are foreseeable Ps (note: firefighters or police officers may still be barred)
• fetuses: if child is born with injuries caused by negligent incident, newborn baby will have cause of action in his own name; if there is no live baby born, estate of baby doesn’t have claim. mother can still have claim though. (In NY, no wrongful birth or death claim for babies that aren’t born alive; MBE: duty of care owed to fetus, most states permit wrongful death if fetus dies from injuries but no wrongful birth claim anywhere)
• doctor misdiagnoses birth defect: parens can recover for marginal additional costs of care once child is born, but not emotional distress
• doctor messes up sterilization: NO recovery in NY

Question 3

How much care do you owe under duty? exceptions?

Answer 3

the amount of care that would be exercised by a reasonably prudent person acting under similar circumstances

exceptions: if person has exceptional skill or knowledge, standard is modified to match superior skill or knowledge; also modified based on the physical characteristics of actor (blind, etc.)

Question 4

What is special standard of care for children?

Answer 4

children under 5: NO duty of care
children aged 5-18: duty of care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances

exception: special standard doesn’t apply for child is engaging in adult activity

Question 5

What is special standard of care for professionals?

Answer 5

a professional is required to exercise the skill and knowledge normally possessed by other members of that profession in good standing in similar communities (empirical standard: looks to custom)

professionals: service providers that are licensed and have special skill and training and usually self-regulate

Note: in NY, continue to look to similar communities in state for primary care; for specialists, there is a national standard of care

Question 6

What is special standard/traditional CL approach in premises liability cases?

Answer 6

-no duty of care owed to undiscovered trespasser
-duty owed to discovered trespasser if meet DT test: duty to warn of or make safe the conditions known to landowner involving risk of death and serious bodily harm, and use reasonable care in exercise of active operations on the property
-duty owed to licensee if meet licensee test: duty to warn of dangerous conditions (both natural and artificial) known to owner that create unreasonable risk of harm, and exercise reasonable care in conduct of active operations on property
-duty owed to invitee if they meet invitee test: same duty as owed to licensees + duty to makereasonable inspections to discover nonobvious dangerous conditions and make them safe
Note: different standards for firefighters, police officers, and children

Question 7

What is CL test for discovered trespassers?

Answer 7

• Duty only arises wrt artificial conditions
• condition must also be highly dangerous (kil or badly hurt someone)
• condition must be concealed
• danger must be known in advance by possessor of property

Question 8

What is CL test for licensees?

Answer 8

licensees: people who enter property with permission but who do not confer economic benefit on possessor (e.g. social guests)

test:

1) concealed condition: danger is hidden
2) danger must be known by possessor in advance

Question 9

What is CL test for invitees?

Answer 9

invitees: people who enter land with permission and either confer an economic benefit on possessor of property or the property is open to the public generally

test:

1) condition is concealed
2) condition must be one that possessor of property either knew about or could have discovered through a reasonable inspection (no SL here)

Question 10

What is NY approach in premises liability cases?

Answer 10

generic reasonably prudent person under the circumstances standard: circumstances include what kind of entrant you are dealing with–must take more care to protect customers than social guests for example

Question 11

What is standard for firefighters and police officers?

Answer 11

MBE: firefighters and police officers are not allowed to recover if they are injured due to an inherent risk of the job

NY: this rule applies only if lawsuit is against employer or coworker, can still sue other people

Question 12

What is standard for common carriers and innkeepers?

Answer 12

higher duty of care required (duty of courtesy): liable for slight negligence

only applies if P is a passenger or guest

Question 13

What is standard for automobile drivers to guests?

Answer 13

duty of ordinary care

Question 14

What is the duty owed by possessor to those off premises?

Answer 14

no duty to protect from natural conditions

there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land

liable for damage caused off the premises by trees on the premises

Question 15

What is standard for child trespassers?

Answer 15

reasonably prudent person standard, so duty to exercise ordinary care, with regard to reasonably foreseeable harms

P must show that there was a dangerous condition on law that owner was aware of, owner knows or should know children frequent vicinity of condition, condition is likely to cause injury, and expense of remedying the situation is slight

NOTE: child does NOT have to be attracted onto land by dangerous condition, and dangerous condition alone doesn’t create liability

Question 16

What is standard of lessor?

Answer 16

general duty to maintain the premises, including warning of existing defects of which lessor is aware or has reason to know, and which he knows lessee is not likely to discover on a reasonable inspection

Question 17

When is duty satisfied?

Answer 17

• if you repair or reinforce hazard

- if possessor of property gives warning

Question 18

When are there statutory standards of care? exceptions?

Answer 18

When:

1) statute provides for a criminal penalty
2) statute clearly defines the standard of conduct
3) P is within protected class that statute is trying to protect
4) statute was designed to prevent type of harm suffered by P

Summary: class of person, class of risk 
--if standard is met and statute is violated, negligence per se: presumption of duty and breach of duty (still have to prove causation and damages)

Exceptions: statute doesn’t apply if:

• compliance with statute would be more dangerous than violation
• compliance with statute was impossible

Note: in NY, statutory protection for construction workers

Question 19

What is duty regarding negligent infliction of emotional distress?

Answer 19

standard:
1) P must usually show that her distress has been caused by a threat of physical impact (so P must be in zone of danger)
2) generally P must suffer physical symptoms from the distress

Question 20

other scenarios for negligent infliction of emotional distress?

Answer 20

near-miss cases: negligent D almost caused physical injury to P: generally must have subsequent physical manifestation of distress

bystander cases: negligent D who seriously injures or kills an individual who is not going to be P in the case, P is distressed because of injuries suffered by X
MBE requirements: P can only recover if direct victim is close family member and P was physically present when victim was hurt
NY requirement: in addition to MBE requirements, P must also be in zone of physical danger

special relationship: relationship between P and D such that D’s negligence has greater potential to cause emotional distress (doctor-patient, medical lab-patient, etc.)

Question 21

Duty to act affirmatively?

Answer 21

No duty to act affirmatively: no duty to undertake an activity. Once you do undertake an activity though, must act reasonably carefully (so no duty to rescue)

Question 22

Exceptions to no duty to act?

Answer 22

• preexisting relationship between D and person in peril: triggers duty to rescue based on whatever is reasonable under the circumstances (formal legal relationships; expanded to informal relationships)
• if D is one who put P in peril, there is also a duty: don’t need to cause peril through negligence to trigger duty
• if neither exception applies but someone nonetheless chooses to rescue (a gratuitous rescuer) and does rescue carelessly, rescuer may be held liable (Note: protected from ordinary negligence in many states by Good Samaritan statutes)

NY: gratuitous rescuer won’t be liable for simple negligence, not even rescuer that is licensed health professional

Question 23

In NY, what is defense for professionals duty to disclose risks? (No MBE equivalent)

Answer 23

• undisclosed risk is too commonly known to warrant disclosure
• patient said he would undergo procedure regardless of risks
• consent was not reasonably possible
• dr used reasonable discretion in disclosure because he reasonably believed disclosure would adversely and substantially affect P