Negligence: Duty of Care

Question 1

What is the general duty of care?

Answer 1

Any person owes a general duty of care to act as a reasonably prudent person to all foreseeable plaintiffs
* Majority (Cardozo): Plaintiff must be within the foreseeable “zone of danger” from D’s activities to be owed this duty of care
* Minority: Duty of care is owed to anyone

Question 2

What is an alternative standard of care?

Answer 2

A specific duty imposed by a statute replaces the general common law duty of care

Question 3

When does the statutory standard of care apply?

Answer 3

P must show that
(a) she is in class intended to be protected by statute
(b) statute was intended to prevent type of harm P suffered

Violation of statute is considered “negligence per se” (conclusive presumption of duty and breach of duty)

Ask: Is there valid reason why D didn’t comply with statute? (more dangerous to or had no control)

Must look at intent of the legislature - if it’s not clear from facts, explain how D would interpret scope of statute vs. how P would interpret it.

Question 4

When does a defendant “breach” his duty?

Answer 4

When defendant’s conduct falls below the level required in the applicable standard of care.

Question 5

What duty does a business that gathers the public for profit on their premises have to a customer?

Answer 5

Business has duty to use reasonable care to prevent injury to patrons from third persons (ex. robbers)

Question 6

When is it OK for a defendant to violate a statutory standard of care?

Answer 6

(a) When complying with statute would cause more danger than violating the statute
(b) compliance is beyond the defendant’s control

Ex. Car violates statute requiring it not to cross median strip so that it doesn’t hit a child running across street - this is OK and D is NOT held to statutory standard of care

Ex. D has heart attack while driving and crosses median strip - D obviously can’t comply with statute here