Negligence - DUTY Flashcards
What is the basic definition of duty?
The obligation to take risk-reducing precautions to lower the chance you’re going to hurt someone.
To whom is the duty owed?
Foreseeable victims of careless behavior.
Are rescuers who are far away at the time of the careless act unforeseeable?
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.
In NY, what is D’s liability for causing impact to the body of a pregnant woman?
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.
In NY, what is a doctor’s liability for misdiagnosing a fetus?
Parents can recover only for the additional cost of raising a child with that specific disability.
Damages for anguish/mental suffering cannot be recovered.
In NY, what is a doctor’s liability for performing an unsuccessful sterilization procedure?
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.
How much care is owed to foreseeable victims?
The amount of care a reasonably prudent person would have given under similar circumstances.
Is it the judge or jury who decides whether D acted with reasonable care?
The jury.
The reasonably prudent person standard is objective and ignores subjective attributes of defendants. What are the two exceptions?
- D has superior skill or knowledge - such that they should have taken more care than the reasonably prudent person without that skill or knowledge.
- D has a relevant physical characteristic
If D is incredibly low intelligence, and it is impossible for him to conform to the reasonably prudent person standard, what standard applies?
The reasonably prudent person standard. Low intelligence is irrelevant in tort.
What are the six cases of special duties that displace the reasonably prudent person standard?
- children
- professionals
- premises liability
- statutory standards
- duties to act affirmatively
- negligent infliction of emotional distress
What duty to children younger than five owe to foreseeable plaintiffs?
None.
What duty do children between ages 5-18 owe to foreseeable plaintiffs?
The duty of care a reasonable child of similar age, experience, and intelligence would give.
What duty does a child driving any sort of motorized vehicle owe?
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.
What types of professionals are considered to owe a specialized duty of care?
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
What is the duty of care owed by professionals?
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.
In NEW YORK, what community defines the standard of care owed by general practitioners?
the professional’s community - e.g. rural, urban, etc.
In NEW YORK, what community defines the standard of care owed by a health care professional who is a specialist?
the national standard
What is negligence per se?
When a statute replaces the ordinary duty of care, evidence that D violated the statute is conclusive of breach of the duty.
When can a P successfully have the court replace the ordinary standard of care with a statute?
- P is a member of the class of persons the statute is trying to protect
- The injury is in the class of risks the statute seeks to prevent.
(Class of person, class of risk)
A statute will not replace the reasonably prudent person standard (even when the test is met) when …?
- compliance would be more dangerous than violation.
(e. g. swerved over the line to avoid hitting a child) - compliance was impossible
(e. g. heart attack + involuntary motion)
What are the general duties to act affirmatively?
There are no general duties to act affirmatively.
When does the duty fo act affirmatively arise?
- there is a pre-existing relationship between P and D
- - traditional: employer/ee, landowner/invitee, innkeeper/guest, common carrier/customer - D put P in peril (even if did so without negligence)
If a person has a duty to act affirmatively, must they rescue the person in peril?
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.
Once a person has begun rescuing (whether by an affirmative duty or volition), what duty do they owe P?
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.
What is NY’s Good Samaritan statute?
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.
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?
No. No matter how dick failing to rescue is, a stranger never has a duty to rescue another stranger in peril.
Define elements of negligent infliction of emotional distress.
- D acts negligently
- which causes P severe emotional distress
- and P suffers physical manifestation of that distress (in most cases)
In a near-miss case, what are the requirements for NIED?
D’s carelessness puts P in the zone of danger, and P suffers a physical manifestation of the distress.
In a bystander case, what are the requirements for NIED?
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.
In a special relationship case, what are the requirements of NIED?
(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.
