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Torts > Negligent Torts - DUTY > Flashcards

Negligent Torts - DUTY Flashcards

1
Q

In general, to whom do you owe a duty?

A

Reasonably foreseeable plaintiffs

i.e., You do not owe a duty to UNforeseeable victims!

[Thus, rule: Unforeseeable victims ALWAYS lose negligence cases!]

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2
Q

What are the kinds of victims who are exceptions to the general rule that you only owe a duty to foreseeable victims?

A
  1. Rescuers, provided YOU negligently place yourself or others in harm’s way (i.e., induce Rescuers to come save you)
  2. Unborn fetuses (sometimes)
  3. Intended Beneficiaries of Economic Transactions
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3
Q

When are rescuers owed a duty?

A

Rescuers are owed a duty when you negligently place yourself or others in harm’s way, such that a rescuer places himself in harm’s way to save you

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4
Q

What happens when a duty is owed to an unborn fetus?

(3 MBE rules)

(1 NY distinction)

A

IF child SURVIVES: child has cause of action

IF child DIES: child’s estate does NOT have cause of action (but mother/father does)

IF botched diagnosis or sterilization: parents can recover for additional medical expenses and pain/suffering of labor; no recovery for costs of child rearing

[NY RULE: no action for botched sterilization]

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5
Q

What are the attributes of the Reasonably Prudent Person?

A
  1. RPP has NO physical characteristics; AND
  2. There are NO allowances for D’s particular set of attributes (e.g., Low-IQ and mentally ill people are held to the same RPP standard as the average person!)

[BUT NOTE two exceptions!]

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6
Q

What are the six broad categories of “standard of care” rules w/r/t negligent torts?

A

Rules related to:

  1. Children;
  2. Professionals;
  3. Premises Liability (incl attractive nuisance);
  4. Statutory (per se) negligence;
  5. Affirmative Duty to Act; AND
  6. NIED
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7
Q

What are the standards of care for children?

(U5)

(5-18)

(U18 engaged in adult activity)

A

IF kid is under 5: No duty

IF kid is 5-18: Child owes duty of a RPP of similar age, education, intelligence, and experience

IF U18 kid is engaged in an adult activity: Child is held to default RPP standard

[Child standard of care is a PRO-DEFENDANT standard]

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8
Q

What is the standard of care for professionals?

(MBE)

(NY)

A

Professionals must provide the same level of care as an average member of the profession (i.e., Professional has a DUTY TO CONFORM to the standards of the profession)

MBE – national

NY – locality

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9
Q

What is the standard of care for medical professionals?

A

In addition to that of professionals, medical professionals must:

  1. Disclose risks of treatment (informed consent rule); AND
  2. Disclose credible threat of harm (e.g., mental health professionals must warn others of threats disclosed to them by mentally ill patients)
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10
Q

What is the NY RULE on disclosure of medical risks?

A

Need not disclose medical risk IF:

  1. Risk is commonly known;
  2. patient refuses to hear the risk;
  3. consent is not reasonably possible; OR
  4. Disclosure would harm patient
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11
Q

What is the duty to unknown trespassers?

A

No Duty

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12
Q

What is the duty to known/anticipated trespassers?

(4-part test: HACK)

A

D has a duty to protect or warn anticipated trespassing P about:

(1) Highly dangerous (2) Artificial Conditions that are (3) Concealed and (4) Known
(i. e., D must warn/protect P from “known, man-made death traps”)

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13
Q

What is the duty owed to licensees? (2-part test)

A

(Licensees include social guests and unsolicited visitors)

D must protect or warn about: (1) Concealed conditions that are (2) Known by D.

(D must warn/protect P from “all known traps”)

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14
Q

What is the duty to invitees?

A

(Includes patrons or spaces open to public)

D must protect or warn about: (1) Concealed conditions that are (2) Known OR knowable through reasonable inspection

(i.e., D must warn/protect P from “all knowable traps”)

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15
Q

What is the difference between the duty owed to licensees and invitees?

A

Duty to invitees includes duty to warn about traps that would be discoverable through reasonable inspection

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16
Q

When does an attractive nuisance exist?

(4 elements)

A

Attractive nuisance exists when:

  1. There is a known or knowable dangerous condition;
  2. Children will be near the condition;
  3. Children will be unable to appreciate the risk posed by the condition; AND
  4. The cost of remedying the condition would be slight compared to potential harm
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17
Q

What is the NY RULE on premises liability?

A

In NY, the Entrant’s classification does not matter! The duty is always to act as a RPP

(N.B. The Entrant’s classification may be probative for duty, e.g., a RPP may take greater precautions to protect anticipated social guests than unanticipated trespassers)

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18
Q

What is the two-part test to determine if a statutory standard of care can apply?

A

IF

  1. P shows he is of the class of person the statute is meant to protect AND
  2. His harm is of the class statute is meant to protect from,

THEN statutory standard applies.

(N.B. If D does not meet that standard, then negligence per se)

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19
Q

When does the statutory standard of care NOT apply, even if P satisfies two-part test? (2)

A
  1. If statutory compliance would have been more dangerous than noncompliance (e.g., Driver swerves across double-yellow line in order to avoid hitting child in his lane), OR
  2. If statutory compliance was impossible under the circumstances (e.g., Driver has a heart attack that causes him to run a red light)
20
Q

What is the NY RULE for the statutory standard of care?

A

Must be State statute (not ordinance or reg)

21
Q

What are the exceptions to the general rule that D has no duty to take affirmative action?

A
  1. If there is a pre-existing relationship between D and P (e.g., common carrier or innkeeper)
  2. If D caused the peril
22
Q

What is the standard of care when choosing to act affirmatively?

A

Must act reasonably (never have to put your life in peril)

23
Q

What is the NY RULE on the standard of care of rescuers?

A

GOOD SAMARITAN LAW

Rescuers must refrain only from gross negligence

24
Q

What are the elements of NIED for near misses? (3)

A
  1. D was negligent
  2. P in zone of danger
  3. P suffers severe emotional distress WITH physical symptoms (e.g., heart attack, miscarriage)
25
Q

What are the elements of NIED for bystanders?

A
  1. Close relationship with injured party (parent/child/spouse)
  2. At scene of accident
  3. Witnessed accident (physical symptom reqt varies)
26
Q

NY QUESTION

What is the NY RULE for the elements of NIED for bystanders?

A
  1. P Bystander MUST be parent/child/spouse
  2. P must be in zone of danger himself
  3. P must witness accident
27
Q

What are the elements of NIED when the duty arises from a special relationship?

A

Duty arises from Special Relationship to P that creates: high risk that negligence causes high degree of emotional distress

Physical symptoms required only if duty comes from special (named) relationship

28
Q

What are the types of NIED cases?

A
  1. Near miss cases
  2. Bystander cases
  3. Business relationship where it is highly foreseeable that careless performance will distress the customer
29
Q

When are physical symptoms not required in NIED claims?

A

Unnamed special relationships (maybe bystander cases)

30
Q

What are the five elements of negligent torts?

A
  1. D owed a DUTY to conform to a specific standard of conduct (to protect P from unreasonable risk of injury);
  2. D BREACHED its duty,
  3. Breach was the ACTUAL CAUSE of P’s injury,
  4. Breach was the PROXIMATE CAUSE of P’s injury, AND
  5. P suffered DAMAGE
31
Q

What is an unforeseeable victim?

A

Someone outside the zone of danger

[But see exception for rescuers!]

32
Q

What is the zone of danger?

A

The imaginary zone used to determine who is a foreseeable victim

ZOD is determined on a case-by-case basis (common sense)

33
Q

In general, what is the degree of care owed to others?

A

You owe the amount of care that would be exercised by a Reasonably Prudent Person in the same or similar circumstances

34
Q

What are the two exceptions to the general rule that the RPP standard has no special heightened or physical attributes?

A
  1. If D has superior skill or knowledge, RPP has a heightened duty reflecting someone with those heightened attributes
  2. D’s physical characteristics are built into the RPP IF they are RELEVANT to the facts (e.g., if D is blind and his blindness is relevant, then the standard is that of a RPP who is blind)
35
Q

What is an example of a “superior skill” that ratchets up RPP standard?

What is an example of a “superior knowledge” that ratchets up RPP standard?

A

Superior skill is special skill or talent above that of an ordinary person, e.g., advanced degree, racecar driver, etc.

Superior knowledge is special awareness of something not generally knowable, e.g., D has special knowledge his neighborhood and so knows about certain dangers

36
Q

How do you begin a duty answer in a question where there is no special duty owed?

A

“On these facts, no special duty rules appear to apply. Therefore, Defendant owed the Plaintiff the standard duty of a hypothetical reasonably prudent person acting under similar circumstances.”

37
Q

What is a premises liability problem?

A

Someone enters real estate, and is injured while on that property.

Questions: What duty was owed? Who is liable?

38
Q

What are plaintiffs and defendants called in premises liability problems?

A

Plaintiff = Entrant

Defendant = Possessor

39
Q

What are the four kinds of entrants for premises liability problems? (UKLI)

A
  1. Unknown trespasser (P enters land without permission AND D is unaware that P is there)
  2. Known/Anticipated trespasser (P enters land without permission BUT D is aware that or expects that P is there)
  3. Licensee (P enters land with permission but who confers no economic benefit to D, e.g., friends and family)
  4. Invitee (P enters land with permission AND confers economic benefit to D, e.g., a business rep, a museum patron, a churchgoer)
40
Q

What are the corresponding duties owed to the four kinds of entrants to land?

A
  1. Unknown trespasser: D owes P NO DUTY
  2. Known trespasser: D owes P duty to protect from “known, man-made death traps” (HACK)
  3. Licensees: D must protect P from “all known traps”
  4. Invitees: D must protect P from “all reasonably knowable traps”
41
Q

What are the two ways to satisfy the duty of care in premises liability?

A
  1. Fix the problem OR
  2. Put up a warning
42
Q

What is statutory standard of care?

A

P wants to “borrow” a criminal/statutory standard of care to use as a special-duty standard rather than the RPP standard

[If P is successful, D’s failure to meet the standard would be negligence per se!]

43
Q

What is the general rule for an affirmative duty to act?

A

In general, there is no duty to act affirmatively (i.e., no duty to “embark on an activity”) (e.g., no duty to rescue)

44
Q

What is the risk to a gratuitous rescuer?

A

If rescuer chooses to act affirmatively and without duty, he is liable for any consequence to that act

(BUT some states have Good Samaritan laws where rescuer must only act free of gross negligence, e.g., NEW YORK)

45
Q

What is NIED?

A

Negligent Infliction of Emotional Distress

46
Q

What are the elements of NIED? (4)

A
  1. D acted negligently
  2. P was within the “zone of danger”
  3. P subjected to threat of physical impact OR sever emotional distress
  4. (Generally,) physical symptoms
47
Q

What are some examples of business relationship NIED cases?

A
  1. Caterer serves pork products at a Jewish wedding
  2. Funeral parlor switches caskets 3

. Hospital mistakenly tells man he has HIV

Torts (16 decks)

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