Negligence (Modules 5-12 ) Flashcards
Duty of Care
Duty is owed to foreseeable victims
A FOS victim is in the zone of danger created by D’s neg conduct
Rescuers are FOS victims even if outside zone of danger (want to encourage that behavior)
Reasonably Prudent Person
Duty of care owed is that of a rxbly prudent person acting under similar circumstances
No allowance for D’s shortcomings
- but if person has superior/specialized knowledge they are held to higher standard
- if D’s physical characteristics are relevant to the claim, then will be held to a standard of a rxble person with those traits (ex. blind person held to standard of rxble blind person under the circumstances)
Duty of Care Owed by Children
- <5 cannot be negligent
- Ages 5-18 held to standard of someone of the same age/experience/intelligence under similar circumstances
- but if child doing dangerous adult activity will be held to adult standard (ex. 11 year old driving car)
Duty of Care Owed by Professional (Malpractice Claims)
Held to standard of care of average member of the profession
A doctor needs to give enough info to a patient about treatment such that a rxble person would have withheld consent without that info
Duty of Care Owed By Possessors of Land to Unknown + Discovered Trespassers
Unknown Trespasser
- no duty owed
Discovered/Anticipated Trespasser
- warn or make safe any known, highly dangerous conditions that are from artificial & concealed
- “known, manmade, death traps”
Duty of Care Owed By Possessors of Land to Licensees + Invitees
Licensees
- on land with implied or express permission but no financial benefit to owner (social guests)
- duty to warn/make safe any concealed hazards that are known to D
- “all known traps”
Invitees
- on land for financial benefit to possessor (ex. supermarket) or when land is open to the public at large (person picking up someone at airport)
- duty is for concealed hazards that D knew or could have discoverd by rxble inspection
- “all rxbly knowable traps”
How to Satisfy Premises Duty Liability as Land Possessor
Eliminate hazardous condition
Warn about hazardous condition
Attractive Nuisance Doctrine
To children trespassers (known or unknown)
Owe a duty of rxbly prudent care under the circumstances; to establish liability P must show:
- dangerous condition owner knew/should have known
- owner knows children might trespass
- condition likely to cause injury
- expense of remedying is slight compared with magnitude of risk
Miscellaneous Land Possessor Duties Owed (Recreational Land and Lessor/Lessee)
Owners of Recreational Land
- permits general public to use land w/o charging a fee is not liable unless maliciously failed to remedy/warn
Duties of Lessor/Lessee of Realty
- lessor must warn of existing defects they K/SHK about and lessee won’t find with rxble inspection
Statutory Standards of Care (Duty of Care)
Specific duty imposed by statute that provides for criminal penalties (including fines) can replace the otherwise applicable duty of care if:
1) P is within the protected class
2) Harm that occured is the type of harm the statute was designed to prevent
- Breach of statutory duty will be negligence per se and satisfy both duty and breach; but still must prove causation
- If compliance would be more dangerous than violation or impossible under circumstances then will not have breached
Affirmative Duty to Act (Duty of Care)
General there is no duty to act or rescue
Exceptions
- special relationship (parent-child)
- common carriers, inn/shopkeepers, employer/employee
- person caused the peril
Once undertake action, owe a duty of care of rxble person
Negligent Infliction of Emotional Distress Cases
“Near Miss” Cases
- P was in zone of danger
- P suffered physical symptoms from the distress caused (e.g, fainted and hit head, severe shock that manifested phsyically)
Bystander Cases
- P was outside the zone of danger
- P and the injured person are closely related
- P was at the scene of the injury and personally perceived the event (not the aftermath)
- most states drop the physical symptom requirement
Business Relationship
- P must show that it was highly FOS that careless performance will produce emotional distress
- ex. dr negligently tells patient they have cancer, funeral home loses the body
Breach of Duty of Care
When D’s conduct falls short of the level required by the applicable standard of care owed to P (can be act or omission)
Evidence of custom/usage can be used to show how should have acted under circumstances but isn’t conclusive
Res Ipsa Loquitur
Theory of breach used by P when they do not have info about D’s breach
The very occurrence of the event established a breach of duty
P must show:
- accident is the type normally/typically associated with neg
- neg is probably attributable to this D; can be done by showing D was in exclusive control of the instrumentality but doesn’t have to be
Effect of Res Ipsa Loquitur
If RIL is established no directed verdict can be given to D because they still need to prove cx + damages
If P fails to establish RIL and there’s no other evidence of breach then D can have directed verdict
P will almost never be granted directed verdict if they establish RIL
