Other Special Duty Rules and Breach of Duty Flashcards
Standard of Care Created by Statute
Statutes that establish the standard of care tend to be more precise. The plaintiff wants to use these statutes to better prove the standard of care. It basically makes duty a non-issue if it’s obvious that a statutorily imposed duty of care between the parties existed. This is often about relationships between people.
General Rule for Statute to Apply:
1. P is in the class intended to be protected by the statute.
2. The statute is designed to prevent the type of harm that P suffered.
Same class of person, same class of risk. Is the statute trying to protect a person like P from the type of harm P suffered?
Affirmative Duty to Act
These are circumstances when D actually has an affirmative duty to do something, rather than just a reasonable person standard when he decides to do a thing.
General Rule: there is no affirmative duty to act. You could watch someone fall down a flight of stairs and do absolutely nothing to help, as cruel as that would be.
Exceptions:
1) SPECIAL RELATIONSHIPS (protect person from world) - You have a duty to assist if you have a special relationship with the person in distress. These include: parent-child, employer-employee, and so on. There are also special relationships created by contract, like a lifeguard, who must rescue strangers by contract.
2) MY AUTHORITAY (protect world from person) - You have a duty to act to prevent someone under your authority from harming someone else, as long as you have the ability to do so. Parents have a duty to prevent their child from hurting someone.
3) YOU CAUSED IT - You have a duty to assist when your conduct has caused someone to get hurt. You walk around the corner and bump into someone and they fall - even if you weren’t negligent, you have a duty to assist the person who you knocked down.
4) YOU STARTED HELPING - If you didn’t have a duty but then started helping, you’ve now assumed a duty not to mess up horribly in giving help, and to avoid breaching it, you have to act with reasonable care when you provide assistance.
Duty to Avoid Negligent Infliction of Emotional Distress
NIED = it’s when P suffers emotional distress because of D’s negligence. 3 types of NIED fact patterns:
1) Near-Miss Case = Here, D acts negligently and NEARLY injures P physically. For example, swerves car and nearly hits P. Then he’s so distressed he suffers physical symptoms like heart palpitations or panic attacks.
2) Sensing close family member injured = Here, P’s close family member is in the zone of danger and typically her child, is harmed by D. P’s distress arises from the grief/shock of SENSING the family member get injured. Must be 1) closely related 2) witnessed it as it happened.
3) Distress Caused by Business Affairs with D Directly = 2 common examples are 1) Doctor negligently gives incorrect diagnosis of serious/terminal illness 2) Funeral home mishandles corpse. The policy reasoning is that you’ve contracted with D when there is significant risk that you’ll suffer emotional distress if they do their job negligently.
Breach of Duty
Breach is about what D did in the case and whether that conduct fell below the standard of care required under the circumstances.
This is a question of fact for the jury.
If you see D moving for directed verdict, summary judgment, or JMoL, that’s a signal that it’s a breach question. D is saying the case doesn’t need to go to jury because P can’t establish breach of duty.
Res Ipsa Loquitur
This is Latin for “The thing speaks for itself”. Comes from the case where P was hit by barrel of flour that fell out of window.
Usually, P has to show what D did to cause the injury in order to prove breach. But here, P had no clue what D did that caused the barrel to fall. Even if we don’t know what made the barrel fall, they don’t just fall out of windows randomly.
To Prove Res Ipsa Loquitur:
1) P must show that accident that caused the injury wouldn’t normally occur in the absence of negligence.
2) The negligence that occurred was attributable to D - D is responsible party. This is the hard part on the BAR.
In other words, it’s a permissible inference that D breached the duty of care. The barrel falling out of the window speaks for itself.
Consequence of Res Ipsa Loquitur
If you’ve applied both prongs, it just means that P has offered enough evidence of duty and breach of duty to get the case past a motion to dismiss or a motion for a directed verdict. It does not mean that P has proven a breach by D, because the jury could still reject the inference of breach raised by res ipsa loquitur.
Negligence Per Se
Negligence per se = proving duty and breach conclusively through violation of statute
This means the duty and breach are conclusively established, unlike res ipsa loquitur, which just provides inference of breach.
Negligence per se is another scenario where procedural motions come up. D will NOT win on directed verdict, just like with res ipsa loquitur. But here, with negligence per se, P can also move for directed verdict, which is NOT something that P could do under res ipsa loquitur.
