Negligence: duty Flashcards
Duty of reasonable care
The default standard is a duty of reasonable care.
There is a duty of care to all persons foreseeably injured by the defendant’s course of conduct. In this way, there is some overlap between duty and proximate cause.
Generally, there is no affirmative duty to act, unless the defendant:
(1) Assumed the duty by voluntarily aiding or rescuing the plaintiff;
(2) Placed the plaintiff in danger;
(3) Has authority over and ability to control the plaintiff, e.g., wardens and prisoners;
(4) Has a special relationship with the plaintiff, e.g., common carriers and innkeepers/guests.
Affirmative duty to act
Generally, there is no affirmative duty to act, unless the defendant:
(1) Assumed the duty by voluntarily aiding or rescuing the plaintiff;
(2) Placed the plaintiff in danger;
(3) Has authority over and ability to control the plaintiff, e.g., wardens and prisoners; or
(4) Has a special relationship with the plaintiff—e.g., common carriers and innkeepers/guests.
Foreseeable plaintiffs: majority view
Under the Cardozo view, there is a duty to plaintiffs of the class of persons that foreseeably may be harmed by the conduct.
Foreseeable plaintiffs include rescuers: “Danger invites rescue.”
They can also include crime victims if the defendant negligently places the plaintiff at risk of being targeted for crime.
Foreseeable plaintiffs: minority view
Under the “Andrews” (and Restatement) view, there is a duty any time conduct could harm someone.
Whereas the Cardozo vie treats foreseeable plaintiffs as a matter of duty, the Andrews view regards it as a question of proximate cause.
Negligence per se
Under the majority rule, a plaintiff can establish negligence as a matter of law if:
(1) The defendant violated a statute that imposes a specific duty for the protection or benefit of others;
(2) The plaintiff was in the class of people intended to be protected;
(3) The harm was of the type intended to be protected against; and
(4) The harm was caused by the violation of the statute.
By contrast, under the minority view, these factors only give rise to a rebuttable presumption that the defendant owed a duty and breached that duty.
Negligence per se: qualifying statutes
The criminal or regulatory statute must impose a penalty for a violation of a duty.
If the statute imposes no penalty, it cannot be used to conclusively establish a standard of care. Instead, it is evidence of negligence.
Guest statutes
Whereas at common law, drivers owe a duty of reasonable care to passengers (including guests), guest statutes substitute a lesser duty:
To refrain from gross, wanton, or willful misconduct respect to a guest.
Negligence per se: defense of excuse
The defendant may be able to establish that:
(1) Compliance with the statute would be even more dangerous than violating the statute;
(2) Compliance was impossible or an emergency justified violation of the statute;
(3) Incapacity, i.e., disability;
(4) Defendant exercised reasonable care in trying to comply;
(5) The statute was vague.
