Negligence: Duty and Breach

Question 1

Persons to whom a duty is owed

Answer 1

• Duty to foreseeable victims and only foreseeable victims.
• Unforeseeable victims can never win.

Question 2

Unforeseeable definition

Answer 2

Very far away from the “zone of danger”

Question 3

General scope of duty exception

Answer 3

• Rescuers- if someone comes to rescue people, and commits a poor undertaking, people are allowed to recover.
• Not subject to zone of danger.

Question 4

Standard of Care to Foreseeable Plaintiffs

Answer 4

Same care as a reasonably prudent person would in the same or similar circumstances.

Question 5

Definition of a reasonably prudent person

Answer 5

Person who always locks doors, carries emergency flares, always arranges to have plants watered and pets fed when they go out of town, etc..

Question 6

Reasonably Prudent Person Standard Objectivity

Answer 6

Objective, universal. Make no allowances for the defendant’s shortcomings.

Question 7

Exceptions to the reasonably prudent person standard of care

Answer 7

1. Person who has superior skill or knowledge. Standard is reasonably prudent person with that superior skill or knowledge.
   
   1. e.g. someone who has knowledge of a particular dangerous route
2. If a person is blind, the reaosnably prudent person is blind.
   
   1. But, physical attributes only come in if it has something to do with the case.

Question 8

Applicability of Reasonably Prudent Person Standard

Answer 8

• The reasonably prudent person standard almost always applies in every case.
• Always assumed to be correct unless trumped by other rule.

Question 9

Age exception to the standard of care

Answer 9

• Children under 5 owe no duty of care to the rest of the world
• Children over 5 owe duty of RP child of similar age, experience, and intelligence, acting under similar circumstances.
  
  • Fluctuates with every different child and their individual circumstances
• When a child is engaged in adult activity, ignore child standard and use adult RPP standard of care
  
  • E.g. underage driver of any motorized vehicle, even farm equipment

VA:

• Children under 7 owe no duty of care to the rest of the world.
• For children ages 7 through 14, there is a rebuttable presumption that the child is incapable of negligence

Question 10

Standard of care for professionals

Answer 10

• Standard that would be given by an average member of the same profession who provides similar types of services
  
  • i.e. doctors must behave as average of medical profession—conform to customary standards

Question 11

The kinds of experts that can prove SoC in medical cases

Answer 11

• Experts can come from anywhere.
• Standard of care is national.

VA:

• Virginia follows the national standard of care, meaning experts can come from anyhere.
• But, if local SoC is justified because of limited availability of healthcare services/facilities, local standard should control.

Question 12

Informed Consent Rules

Answer 12

• Doctor has duty to inform risks of procedure before going forward.
• But if everything turns out fine, no COA.
• Undisclosed risk must have happened to patient

Question 13

Standard of Care for Premises Liability

Answer 13

In premises liability, there is different standard of care for each category of defendant.

Categories of Defendants:

1. Unknown Trepasser
2. Known Trespasser
3. Licensee

Question 14

Unkown Trespasser

Answer 14

• Someone who comes on the land without permission and possessor was unaware he was there.
• No duty is owed. Undiscovered trespassers always lose the case.

Question 15

Known Trespasser

Answer 15

• Trespasser possessor knows about/should be anticipated
  
  • Pattern of trespassing in the past. Possessor knows trespassing may happen again.

Question 16

4-part test for the Known Trespasser Standard of Care

Answer 16

1. Only duty with regard to artificial condition. No duty for natural condition
2. Condition must be highly dangerous
   
   1. Definition: Capable of inflicting severe bodily harm or death
   2. No duty of care in moderately dangerous condition
      
      1. e,g,: slippery area rug in house
3. Condition must be one that is concealed.
   
   1. No duty of care for open and obvious conditions.
4. Condition is one that possessor knew about in advance

(in short: known, man-made death traps).

Question 17

Licensee

Answer 17

• Someone who enters the property with express or implied permission, but for no economic benefit on the possessor.
  
  • e.g. social guests.

Question 18

Duty of Care to Licensees

Answer 18

• Covers natural conditions, and conditions of moderate danger.
• Short form version: Duty to protect from all known traps

Question 19

Duty of care owed to people who knock on doors for job/activism etc.

Answer 19

1. Special type of licencees.
2. Duty only when potentially harmful cond is:
   
   1. Concealed from licencee
   2. One that possessor knew about in advance.

Question 20

Invitee

Answer 20

• A person who enters land with express or implied permission either to confer economic benefit on possessor or property open generally to the entire public.
  
  • e.g. business customers

Question 21

Invitee Standard of Care

Answer 21

1. Condition must be concealed, and
2. One possessor knew about in advance or could have discovered through a reasonable inspection
   
   1. Reasonable inspection: inspection done by RPP. RPP doesn’t inspect their prop. every day. Reasonably thorough. Takes into acct cost of inspection and benefits.

Short form: possessors must protect invitees from all reasonably knowable traps on the prop.

Question 22

Duty of care owed to police officers and firefighters

Answer 22

• Police and firefighters are entitled to no duty of care regarding any risk that is inherent in their job.
• They assume the risk.

Question 23

Duty to Child Trespassers

Answer 23

• Child trespassers are owed the duty of a reasonably prudent person acting under similar circumstances.
• Ordinary negligence standard.

Question 24

Attractive Nuisance Doctrine

Answer 24

• If you live in an area where children are more likely to trespass, have to make sure nuisance is safe and no other hazards are around
• Two ways to satisfy duty: duty to eliminate or repair dangerous condition, or to warn
  
  • Typically choices that have warnings better option on MBE
• VA: Attractive nuisance doctrine not recognized in VA but greater duty of care when children are on the land

Question 25

Negligence Per Se

Answer 25

Doctrine that stipulates the standard of care is the narrow command of a criminal statute.

Question 26

Negligence Per Se Test

Answer 26

1. Plaintiff is a member of a class the statute is trying to protect
2. The incidnt was within the class of risks statute tries to protect

short: class of person, class of risk

Question 27

Negligence Per Se Exceptions

Answer 27

1. Following statute would be more dangerous than violating it
   
   1. e.g. swerving to avoid a kid
2. Compliance of the statute is completely impossible under the circumstances
   
   1. e.g. driver has a heart attack

Question 28

Duty to Act Affirmatively

Answer 28

• No duty to act affirmatively.
• You have no duty to rescue someone in peril.

Question 29

Duty to Act Affirmatively Exception

Answer 29

• If you choose to rescue and you mess up, you will be liable.
• Exception to the Exception: Good Samaritan Laws
  
  • Will shield rescuers from liability.
  • BUT do not assume this will apply unless it says so
  • VA Good Samaritan Statute:
    
    • Applies to all persons who provide aid in an emergency situation, not just medical personnel.

Question 30

Negligent Infliction of Emotional Distress (NIED) Elements

Answer 30

2 part Analysis:

1. D must be neg under some other standard.
2. If p did not sustain direct bodily injury, and only left emotionally upset one of the following must match the facts:
   
   1. near-miss rule
   2. bystander rule
   3. relationship cases rule

Question 31

Near-miss rule

Answer 31

• Near-miss case: negligent D did not hurt P but almost did
  
  • P has to show that neg act placed them in zone of physical danger
  • P must have suffered subsequent physical manifestations
    
    • e.g. heart attack

Question 32

Bystander Rule

Answer 32

1. P observes negligent defendant seriously harm or kill a third party
   
   1. P and victim must be close family members
      
      • Parents, children and spouses for most states. Other have gone further, but these 3 are safe
   2. P must be physically present and see injury as it happens.
      
      • “need a ring-side seat as a loved one gets creamed”

Question 33

VA Bystander Rules

Answer 33

• Bystander must be in zone of danger himself.
  
  • So close they could have been victim too, so pretty much not a bystander at all.
• P must prove symptoms or manifestations of physical injury by clear and convincing evidence.

Question 34

Relationship Cases

Answer 34

1. P and D have pre-existing business relationship and nature of business makes it highly foreseeable that careless will lead to emotional distress.
   
   1. Examples:
      
      1. Patient and medical professional- could be
      2. Funeral home and loved one- could be
      3. Customer and dry cleaning establishment- not likely successful

Question 35

How Breach Occurs

Answer 35

The defendant must have not acted as a reasonably prudent person would under same or similar circumstances.

Question 36

VA Essay Esam Breach Tip

Answer 36

• On the exam, explain why the breach is unreasonable.
• “this conduct is unreasonable because”…
• e.g. a reasonably prudent person, after several martinis, will be too intoxicated to drive; a reasonably prudent person would not leave a spill out for a week because people will slip in it.

Question 37

res ipsa loquitor

Answer 37

The plaintiff lacks information or evidence about the misconduct, but because of the nature of the injury, can pinpoint a particular defendant/defendants.

Question 38

Elements of res ipsa loquitor

Answer 38

1. The plaintiff wouldn’t have been injured if someone wasn’t negligent
2. The incident is ordinarily due to the negligence of someone in that particular defendant’s position.
   
   • defendant had control of the hurting instrument