Negligence - The Duty of Care

Question 1

General Duty of Care

Answer 1

When a person engages in an activity she is under a legal duty to act as reasonably prudent person.

Question 2

To whom is the duty of care owed?

Answer 2

A duty of care is only owed to foreseeable Plaintiffs.

Question 3

What are the two views on the “unforeseeable” Plaintiffs?

Answer 3

Cardozo view:* A second Plaintiff may recover only if she can establish that a reasonably prudent person would have foreseen a risk of injury to her in the circumstances, i.e. that she was located in a foreseeable “zone of danger.”

*Followed by most courts

Andrews view: A defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.

Question 4

When is a rescuer a foreseeable Plaintiff?

Answer 4

A rescuer is foreseeable as long as the rescue is not wanton.

“Firefighter’s Rule:” May bar firefighters and police officers on public policy or assumption of risk grounds from recovering for injuries caused by the risks of a rescue.

Question 5

Foreseeability of Prenatal Injuries

Answer 5

Prenatal injuries are actionable, a duty of care is owed toward a fetus, so long as the fetus was viable at the time of injury.

Wrongful Life - Action Not recognized
Wrongful Birth and Wrongful Pregnancy - Recognized

Question 6

Wrongful Birth

Answer 6

A cause of action available to a child’s parents for failure to properly diagnose a defect.

Parents may recover additional medical expenses to take care of the child.

Question 7

Wrongful Pregnancy

Answer 7

A cause of action available to a child’s parents for failure to properly perform a contraceptive procedure.

The mother may recover damages for the unwanted labor (medical expenses and pain and suffering).

If the child is born healthy most cases do not permit parents to recover child-rearing expenses, just damages for unwanted labor.

Question 8

Intended Beneficiaries of Economic Transactions

Answer 8

A third party for whose economic benefit a legal or business transaction is made (i.e. beneficiary of a will) is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently.

Question 9

Standard of Conduct - Professional

Answer 9

A person who is a professional or has special skills (e.g. doctor, lawyer, airplane mechanic. etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

MBE: For medical specialists, a “national” standard of care applies to all physicians.

Question 10

Duty to Disclose Risks of Treatment

Answer 10

A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment.

If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty.

Question 11

Standard of Conduct - Child

Answer 11

A child is required to conform to the standard of care of a child of like age, education, intelligence, and experience.

This is a subjective standard.

Question 12

Minimum Age for Capacity to Be Negligent

Answer 12

Children below the age of five do not have the capacity to be negligent.

Question 13

Standard of Conduct - Children Engaged in Adult Activities

Answer 13

Where a child engages in an activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard are as an adult in such an activity.

The reasonably prudent person under the circumstances standard.

Question 14

Standard of Conduct - Common Carriers and Innkeepers

Answer 14

Common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests; i.e. they are liable for slight negligence.

Question 15

Standard of Conduct - Automobile Driver to Guest

Answer 15

A guest in an automobile is owed a duty of ordinary

Question 16

Duties owed by Bailee

Answer 16

The bailee’s standard of care depends on who benefits from the bailment.

i) Sole benefit of the Bailor: Low standard of care
ii) Sole benefit of the Bailee: High standard of care
iii) Mutual benefit Bailment: ordinary standard of care.

Modern trend is ordinary standard of care taking into account the type of Bailment.

Question 17

Duties owed by Bailor

Answer 17

i) Sole Benefit of the Bailee: The bailor must inform the bailee of known, dangerous defects in the chattel.
ii) Bailment for hire: The bailor must inform the bailee of chattel defects of which he is or should be aware.

Question 18

Standard of Conduct - Emergency Situations

Answer 18

A defendant must act as a reasonable person would under the same emergency conditions.

The emergency is not to be considered, however, if it is of the defendant’s own making.

Question 19

Premises Liability - Duty to Those Off Premises

Answer 19

There is no duty to protect one off the premises from natural conditions on the premises.

There is a duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land.

One must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.

Ex: In urban areas, the owner/occupier is liable for damage caused off the premises by falling branches.

Question 20

Premises Liability - Duty Owed to Undiscovered Trespassers

Answer 20

No duty is owed to an undiscovered trespasser.

Question 21

Premises Liability - Duty Owed to Discovered Trespasser

Answer 21

The possessor must:

i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm; AND
ii) use reasonable care in the exercise of “active” operations” on the property.

Question 22

Premises Liability - Attractive Nuisance Doctrine

Answer 22

The plaintiff must show:

i) a dangerous condition on the land that the owner is or should be aware of;
ii) the owner knows or should know children frequent the vicinity of the condition;
iii) the condition is likely to cause injury (i.e. it is dangerous because of the child’s inability to appreciate the risk); AND
iv) the expense of remedying the condition is slight compared with the magnitude of the risk.

Question 23

Premises Liability - Duty Owed to Licensees

Answer 23

A licensee is one who enters onto land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. (Social guests).

The possessor has a duty to:

i) warn or make safe dangerous conditions (natural or artificial) known to the possessor that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; AND
ii) exercise reasonable care in the conduct of “active operations” on the property.

The possessor has no duty to inspect or repair.

Question 24

Property Liability - Duty Owed to Invitees

Answer 24

Invitees enter onto the land in response to an invitation by the landowner and confer an economic benefit (i.e. they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public.) (Shops, museums).

The possessor has a duty to:

i) warn or make safe dangerous conditions (natural or artificial) known to the possessor that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover;
ii) exercise reasonable care in the conduct of “active operations” on the property.
iii) make reasonable inspections to discover non-obvious dangerous conditions and thereafter make them safe.

Question 25

Premises Liability - Duty Owed to Users of Recreational Land

Answer 25

A landowner who permits the general public to use her land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Question 26

Negligence Per Se

Answer 26

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines) may replace the more general common law duty of car if:

i) the plaintiff is within a class meant to be protected by the statute; AND
ii) the statute was designed to precent the type of harm suffered by the plaintiff.

Exception: Violation of some statutes may be excused where compliance would case more danger than violation OR where compliance would be beyond the defendant’s control.

Procedural Effect: An unexcused statutory violation is negligence per se - it establishes a conclusive presumption of duty and breach of duty.

Question 27

Duty Regarding Negligent Infliction of Emotional Distress

Answer 27

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.

The plaintiff must:

i) be within the “zone of danger;” AND
ii) the plaintiff must suffer physical symptoms from the distress.

Question 28

NIED - Bystander Not in Zone of Danger Seeing Injury to Another

Answer 28

A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for her own distress as long as:

i) the plaintiff and the person injured by the defendant are closely related;
ii) the plaintiff was present at the scene of the injury; AND
iii) the plaintiff personally observed or perceived the event.

NY Distinction: Plaintiff must have close relationship AND be within the “zone of danger.”

Question 29

NIED - Special Relationship between Plaintiff and Defendant

Answer 29

The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms, when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress. (e.g. doctor’s misdiagnosis that the patient has a terminal illness).

Question 30

NIED - When can recover when not in “Zone of Danger”

Answer 30

Plaintiff may be able to recover without proving the zone of danger and physical symptoms requirements where the defendant’s negligence creates a great likelihood of emotional distress (e.g/ erroneous report of a relative’s death or mishandling of a relatives corpse).

Question 31

Affirmative Duties to Act

Answer 31

Generally, one does not have a legal duty to act. However there are several exceptions to this rule.

Question 32

Exceptions to the Affirmative Duties to Act (4)

Answer 32

1) Assumption of Duty by Acting
2) Peril Due to the Defendant’s Conduct
3) Special Relationship Between the Parties (i.e. common carriers, innkeepers, shopkeepers).
4) Duty to Prevent Harm from Third Persons:

Question 33

Affirmative Duties - Assumption of Duty by Acting

Answer 33

One may assume a duty to act by acting. Once the defendant undertakes to aid someone, she must do so with reasonable care.

Question 34

Affirmative Duties - Peril Due to Defendant’s Conduct

Answer 34

One has a duty to assist someone he has negligently or innocently placed in peril.

Question 35

Affirmative Duties - Special Relationship Between Parties

Answer 35

A special relationship between the parties (e.g. parent-child) may create a duty to act. Similarly, common carriers, innkeepers, shop keepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.

Question 36

Affirmative Duties - Duty to Prevent Harm from Third Persons

Answer 36

Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know that the person is likely to commit acts that would require exercise of this control.