Negligence - DUTY

Question 1

What is the basic definition of duty?

Answer 1

The obligation to take risk-reducing precautions to lower the chance you’re going to hurt someone.

Question 2

To whom is the duty owed?

Answer 2

Foreseeable victims of careless behavior.

Question 3

Are rescuers who are far away at the time of the careless act unforeseeable?

Answer 3

No. Rescuers are always foreseeable - “danger invites rescue.” So, a D can be liable to a rescuer for his careless act that results in the rescuer’s injury.

Question 4

In NY, what is D’s liability for causing impact to the body of a pregnant woman?

Answer 4

If the child is born with injuries, the child has a cause of action for those injuries.

If the child dies as a result of the impact, only the parent can bring a loss of child claim. The child’s “estate” will have no claim.

Question 5

In NY, what is a doctor’s liability for misdiagnosing a fetus?

Answer 5

Parents can recover only for the additional cost of raising a child with that specific disability.

Damages for anguish/mental suffering cannot be recovered.

Question 6

In NY, what is a doctor’s liability for performing an unsuccessful sterilization procedure?

Answer 6

The couple may not recover anything if an pregnancy results.

Idea: babies bring happiness and joy - having the child is compensation for the improper sterilization you wanted.

Question 7

How much care is owed to foreseeable victims?

Answer 7

The amount of care a reasonably prudent person would have given under similar circumstances.

Question 8

Is it the judge or jury who decides whether D acted with reasonable care?

Answer 8

The jury.

Question 9

The reasonably prudent person standard is objective and ignores subjective attributes of defendants. What are the two exceptions?

Answer 9

1. D has superior skill or knowledge - such that they should have taken more care than the reasonably prudent person without that skill or knowledge.
2. D has a relevant physical characteristic

Question 10

If D is incredibly low intelligence, and it is impossible for him to conform to the reasonably prudent person standard, what standard applies?

Answer 10

The reasonably prudent person standard. Low intelligence is irrelevant in tort.

Question 11

What are the six cases of special duties that displace the reasonably prudent person standard?

Answer 11

1. children
2. professionals
3. premises liability
4. statutory standards
5. duties to act affirmatively
6. negligent infliction of emotional distress

Question 12

What duty to children younger than five owe to foreseeable plaintiffs?

Answer 12

None.

Question 13

What duty do children between ages 5-18 owe to foreseeable plaintiffs?

Answer 13

The duty of care a reasonable child of similar age, experience, and intelligence would give.

Question 14

What duty does a child driving any sort of motorized vehicle owe?

Answer 14

Children engaging in adult-only activities are judged on the inflexible reasonably prudent person standard. Most often: kid driving a motorized vehicle.

Note: if the child has a specialized skill - like has been working a tractor for 10 years - then they’re held to that specialized skill.

Question 15

What types of professionals are considered to owe a specialized duty of care?

Answer 15

Learned professionals who are licensed, and have a specialized skill or training. They are usually self regulated. E.g. doctors, lawyers, engineers, architects … but NOT: investment brokers

Question 16

What is the duty of care owed by professionals?

Answer 16

To exercise the skill and knowledge normally possessed by other members of the profession in good standing in similar communities.

DO AS OTHER PROFESSIONALS WOULD.

Question 17

In NEW YORK, what community defines the standard of care owed by general practitioners?

Answer 17

the professional’s community - e.g. rural, urban, etc.

Question 18

In NEW YORK, what community defines the standard of care owed by a health care professional who is a specialist?

Answer 18

the national standard

Question 19

What is negligence per se?

Answer 19

When a statute replaces the ordinary duty of care, evidence that D violated the statute is conclusive of breach of the duty.

Question 20

When can a P successfully have the court replace the ordinary standard of care with a statute?

Answer 20

1. P is a member of the class of persons the statute is trying to protect
2. The injury is in the class of risks the statute seeks to prevent.
   (Class of person, class of risk)

Question 21

A statute will not replace the reasonably prudent person standard (even when the test is met) when …?

Answer 21

1. compliance would be more dangerous than violation.
   (e. g. swerved over the line to avoid hitting a child)
2. compliance was impossible
   (e. g. heart attack + involuntary motion)

Question 22

What are the general duties to act affirmatively?

Answer 22

There are no general duties to act affirmatively.

Question 23

When does the duty fo act affirmatively arise?

Answer 23

1. there is a pre-existing relationship between P and D
   - - traditional: employer/ee, landowner/invitee, innkeeper/guest, common carrier/customer
2. D put P in peril (even if did so without negligence)

Question 24

If a person has a duty to act affirmatively, must they rescue the person in peril?

Answer 24

No - they have a duty to act reasonably under the circumstances. They do not have to put themselves in peril to rescue. They can simply call 911.

Question 25

Once a person has begun rescuing (whether by an affirmative duty or volition), what duty do they owe P?

Answer 25

The care a reasonably prudent person would give.

If you crack someone’s rib by giving the heimlich in a careless manner, you can be held liable.

Question 26

What is NY’s Good Samaritan statute?

Answer 26

A gratuitous rescuer is not liable for ordinary negligence (is for gross).

An employee is not liable and an employer not vicariously liable if the employee misuses an AED.

Question 27

Michael Phelps and Ryan Lochte are walking in central park when they hear a child screaming in the middle of the lake. She is drowning. It would be very easy for them to jump in and save her without risking any injury to themselves. They shrug and decide to go get sandwiches instead. She drowns. Liability?

Answer 27

No. No matter how dick failing to rescue is, a stranger never has a duty to rescue another stranger in peril.

Question 28

Define elements of negligent infliction of emotional distress.

Answer 28

1. D acts negligently
2. which causes P severe emotional distress
3. and P suffers physical manifestation of that distress (in most cases)

Question 29

In a near-miss case, what are the requirements for NIED?

Answer 29

D’s carelessness puts P in the zone of danger, and P suffers a physical manifestation of the distress.

Question 30

In a bystander case, what are the requirements for NIED?

Answer 30

D’s carelessness severely injures X, who is a close family member of P, and P saw it happen.

NY: close family member is defined very narrowly, and P must have been in the zone of danger when the injury to X occurred.

Question 31

In a special relationship case, what are the requirements of NIED?

Answer 31

(generally: funeral home, or medical testing lab)

D and P are in a business relationship, and it is foreseeable that D’s carelessness will cause P distress.