Other Special Negligence Duties

Question 1

are there affirmative duties to act?

Answer 1

1) generally no
2) exception - special relationship between parties
3) exception - peril due to own contact
4) assumption of duty by acting
5) duty to prevent harm from third persons

Question 2

“statutory standards of care”

Answer 2

a clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances - such as speeding) MAY replace the more general COMMON LAW DUTY OF DUE CARE - if:
a) the plaintiff is WITHIN THE PROTECTED CLASS
b) the state was DESIGNED TO PREVENT THE TYPE OF HARM SUFFERED by the Plaintiff

Question 3

what is an excuse for violation of some statutes?

Answer 3

violation of some statutes may be excused where compliance would CAUSE MORE DANGER than violation OR where compliance would be beyond the defendant’s control

Question 4

what if there is an unexcused statutory violation? (NEGLIGENCE PER SE)

Answer 4

Majority view –> an unexcused statutory violation is NEGLIGENCE PER SE – establishes the first 2 requirements for ngeligence
1) conclusive presumption of duty
2) breach of duty

**but on the other hand - compliance with the statute will NOT necessarily establish due care

Question 5

is there an affirmative duty to act?

Answer 5

Generally, one does NOT have a legal duty to act. There is no duty to rescue.

Question 6

2) exception - special relationships between parties (duty to act)

Answer 6

a special relationship between the parties (i.e. parent-child) may create a duty to act.

Similarly, COMMON-CARRIERS, INNKEEPERS, SHOPKEEPERS, and others that gather the pubic for PROFIT - owe duties of REASONABLE CARE TO AID or ASSIST their patrons.

Places of public accommodation have a duty to prevent injury to guests by third persons

Question 7

3) exception - peril due to own contact

Answer 7

one has a duty to assist someone they have negligently or innocently placed in peril

Question 8

4) assumption of duty by acting

Answer 8

one may assume a duty to act by acting (i..e once D undertakes to aid someone, they must do so with reasonable care)

Question 9

EXCEPTOIN TO assumption of duty by acting

Answer 9

Many states enacted Good Samaritan statutes - which exempt doctors, nurses, etc. from liability for ordinary, but not gross neglgence

Question 10

VIRGINIA DISTINCTION: Good Samaritan statue

Answer 10

Virginia’s Good Samaritan statute applies to all persons who provide aid in an emergency situation, not just medical personnel

Question 11

5) duty to prevent harm from third persons

Answer 11

generally, there is NO duty to prevent a third person from injuring another

Question 12

when may an affirmative duty to prevent a third person from injuring another be imposed?

Answer 12

an affirmative duty may be imposed if one has the ACTUAL ABILITY and AUTHORITY to control a persons’ actions, AND knows or should know the person is likely to commit acts that would require exercise of this control

Question 13

what are other particular types of standards of conduct?

Answer 13

1) common carriers and innkeepers
2) automobile driver to guest
3) bailment duties
4) emergency situations

Question 14

1) common carriers and innkeepers

Answer 14

common carriers and innkeepers are held to a very high degree of care – they are liable for slight negligence

BUT for this standard to apply, the plaintiff MUST be a passenger or a guest

Question 15

2) automobile driver to guest

Answer 15

a guest in an automobile is owed a duty of ORDINARY CARE

some guest statutes say that one is liable to nonpaying passengers only for reckless tortious conduct

Question 16

3) bailment duties

Answer 16

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (for example, bailor loans their car to bailee).

Question 17

what are the duties owed by a BAILEE?

Answer 17

the bailee’s standard of care depends on WHO BENEFITS from the bailment:
a) for a SOLE BENEFIT OF BAILOR - there is a low standard of care
b) for a sole BENEFIT OF BAILEE - there is a higher standard of care
c) for a MUTUAL BENEFIT - there is the ordinary care standard

The modern trend applies a duty of ordinary care under the circum- stances, whereby the type of bailment is just one factor taken into account.

Question 18

4) emergency situations

Question 19

what are the duties owed by the BAILOR?

Answer 19

for a sole benefit of the BAILEE - bailment - the bailor must inform the bailee of known, dangerous defects in the chattel

for a bailment for HIRE –> the bailor must inform the bailee of chattel defects of which they are or should be aware

Question 20

4) emergency situations

Answer 20

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

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