Negligence - The Duty of Care Flashcards
General Duty of Care
When a person engages in an activity she is under a legal duty to act as reasonably prudent person.
To whom is the duty of care owed?
A duty of care is only owed to foreseeable Plaintiffs.
What are the two views on the “unforeseeable” Plaintiffs?
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.
When is a rescuer a foreseeable Plaintiff?
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.
Foreseeability of Prenatal Injuries
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
Wrongful Birth
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.
Wrongful Pregnancy
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.
Intended Beneficiaries of Economic Transactions
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.
Standard of Conduct - Professional
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.
Duty to Disclose Risks of Treatment
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.
Standard of Conduct - Child
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.
Minimum Age for Capacity to Be Negligent
Children below the age of five do not have the capacity to be negligent.
Standard of Conduct - Children Engaged in Adult Activities
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.
Standard of Conduct - Common Carriers and Innkeepers
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.
Standard of Conduct - Automobile Driver to Guest
A guest in an automobile is owed a duty of ordinary
Duties owed by Bailee
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.
Duties owed by Bailor
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.
Standard of Conduct - Emergency Situations
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.
Premises Liability - Duty to Those Off Premises
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.
Premises Liability - Duty Owed to Undiscovered Trespassers
No duty is owed to an undiscovered trespasser.
Premises Liability - Duty Owed to Discovered Trespasser
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.
Premises Liability - Attractive Nuisance Doctrine
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.
Premises Liability - Duty Owed to Licensees
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.
Property Liability - Duty Owed to Invitees
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.
