Part Five.1: Negligence > Intro/Duty

Question 1

What is the prima facie case for “Negligence”?

Answer 1

1. Duty of care
2. Breach
3. Causation (Actual/Proximate)
4. Damages

Question 2

What are the two general issues that arise with regards to “Duty of Care”?

Answer 2

1. Was the plaintiff foreseeable? (Duty of care is owed to foreseeable plaintiffs)
2. If so, what is the applicable standard of care?

Question 3

To whom is a “duty of care” owed?

Answer 3

In general, a duty of care is owed to all foreseeable plaintiffs.

Question 4

With regards to “duty of care,” what is the rule if D breaches a duty to one P, and also causes injury to another (possibly unforeseeable) P?

Answer 4

Palzgraf case

1. Cardozo View (Majority) - “Foreseeable Zone of Danger” - P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances (ie..she was located in the foreseeable zone of danger).
2. Andrews View (Minority) - “Everyone is Foreseeable”- P2 need only show that D breached a duty to P1

Question 5

What is a person’s duty to “Rescuers”?

Answer 5

A rescuer is a foreseeable plaintiff IF D negligently put himself or 3rd person in peril.

HOWEVER –> firefighters and police may be barred by “firefighter’s rule” from recovering for injuries caused by a rescue

Question 6

What is a person’s duty to fetus?

Answer 6

A duty of care is owed to viable fetus.

• In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure:
  1. the child MAY NOT recover for “wrongful life”;
  2. but the parents MAY recover damages for “wrongful birth” or “wrongful pregnancy” for additional medical expenses for pain and suffering from labor. Ordinary child rearing expenses, however, may not be recovered.

Question 7

What is duty to “intended beneficiaries of economic transactions”?

Answer 7

A 3rd party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.

Example –> beneficiary under will

Question 8

What is the “Basic Standard of Care”?

Answer 8

• The basic standard of care is the “reasonable person” standard
• This is an “objective” standard. The defendant’s MENTAL deficiencies and inexperience are NOT taken into account. However, the “reasonable person” is considered to have the same PHYSICAL characteristics as D.
• NOTE: One is expected to know one’s handicaps and exercise the care of a person with such knowledge. Example —> blind person should not fly plane
• NOTE: A defendant with knowledge or experience SUPERIOR to that of an average person may be held to a higher standard

Question 9

What is the “standard of care” for professionals?

Answer 9

A professional is required to possess the knowledge and skill of a member of the profession in good standing.

Question 10

What is a doctor’s duty to disclose risks of treatment?

Answer 10

A doctor has a duty to disclose the risks of treatment to enable patient to give informed consent.

A doctor breaches this duty if an UNDISCLOSED RISK was serious enough that a reasonable person in patient’s position would have withheld consent on learning the risk.

Question 11

What is the “standard of care” for children?

Answer 11

• Children are held to the standard of a child of “like age, education, intelligence, and experience”
• this is a SUBJECTIVE test

Child under five —> usually lacks capacity to be negligent

Child engaged in adult activities —-> may be required to conform to an adult’s standard of care

Question 12

What is the “standard of care” for common carriers and innkeepers?

Answer 12

Common carriers and innkeepers are held to a very high degree of care. They are liable for slight negligence.

But note –> P must be a passenger or guest for the higher standards to apply

Question 13

What is the “standard of care” of automobile driver to guest?

Answer 13

• A guest in car is owed duty of ordinary care

- In a few guest statute states, one is liable to non-paying passengers only for RECKLESS tortious conduct

Question 14

What is a “bailment” relationship?

Answer 14

In “bailment relationship” a BAILOR transfers possession but not title to chattel to BAILEE

Question 15

What is the “standard of care” owed by BAILEE to BAILOR ?

Answer 15

-Bailee’s standard of care depends on who benefits from bailment:

1. If for sole benefit of BAILOR, low standard of care;
2. If for sole benefit of BAILEE, high standard of care;
3. If for mutual benefit (ie..bailment for hire), ordinary care standard

Modern trend: applies a duty of ordinary care under the circumstances (so type of bailment is just one factor).

Question 16

What is the “standard of care” owed by BAILOR to BAILEE ?

Answer 16

Sole benefit of bailee –> bailor must inform bailee of KNOWN, DANGEROUS defects in chattel

Bailment for hire (mutual benefit) –> bailor must inform bailee of chattel defects or which he is or should be aware

Question 17

How does the existence of an emergency affect one’s duty of care?

Answer 17

A defendant must act as a REASONABLE PERSON would under the same emergency conditions.

HOWEVER –> if emergency is of D’s own making, it won’t be considered

Question 18

What are the general considerations regarding liability for owners/occupiers of land?

Answer 18

The extent of liability depends on:

1. where injury occurred; and
2. identity of plaintiff

Question 19

What is the duty of land possessor to those who are OFF PREMISES?

Answer 19

• Generally, there is NO duty to protest those OFF premises from NATURAL CONDITIONS on the premises;
• HOWEVER —> There IS a duty for:
  1. UNREASONABLY DANGEROUS ARTIFICIAL CONDITIONs; OR
  2. structures abutting adjacent land.

-ALSO: one must carry on activities on the premises so as to avoid UNREASONABLE risk of harm to others off premises

Question 20

In urban areas, is owner/occupier liable for damage cause off premises by a tree on premises?

Answer 20

Yes.

Example –> falling branches

Question 21

What is the duty of a land possessor to those who are ON PREMISES?

Answer 21

Traditional rule –> duty owed to P depends on premises for dangerous conditions on the land depend on P’s status as:

1. trespasser;
2. licensee;
3. Invitee

Minority rule –> Reject the distinctions between licensees and invitees, and simply apply a “reasonable person standard”

NOTE: MBE questions will specify jurisdiction.

Question 22

Under traditional rules, what is the duty of a land possessor to TRESPASSER on premises?

Answer 22

Undiscovered Trespassers —> No duty owed

Discovered/Anticipated Trespassers –>

(1) warn of or make safe CONCEALED ARTIFICIAL CONDITIONS KNOWN to landowner involving risk of death or serious bodily injury; AND
(2) use REASONABLE CARe in the exercise of “active operations” on the property

NOTE: no duty is owed for natural conditions, or less dangerous artificial conditions

NOTE: easement and license holders owe a duty of reasonable care to trespassers

Question 23

What is the “Attractive Nuisance” doctrine?

Answer 23

In General:
- landowner has duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property

-typically, this is an artificial condition, but a natural condition may suffice

Elements:

1. dangerous condition on land that owner is or should be aware of;
2. owners knows or should know that children frequent the area;
3. condition is likely to cause injury; AND
4. the expense of remedying the situation is slight compared with the magnitude of the risk

NOTE: the child does not need to be attracted to the land because of the condition.

Question 24

What is a “licensee”?

Answer 24

“Licensee” = enter’s land with possessor’s permission for HER OWN benefit or purpose, rather than for the possessor’s benefit

Note: Social guests are considered licensees

Question 25

What duty does a land possessor owe to a licensee?

Answer 25

1. warn or make safe dangerous conditions (artificial or natural)
2. KNOWN to the owner
3. that create an unreasonable risk of harm to the licensee; AND
4. that licensee is unlikely to discover

ALSO

2. exercise REASONABLE CARE in “active operations” on the property

NOTE: possessor has NO duty to inspect or repair

Question 26

What is an “Invitee”?

Answer 26

“Invitee” enter the land in response to invitation by landowner (purpose connected with business of landowner, or as members of the public for a purpose for which the land is held open to public).

NOTE: one may lose invitee status by exceeding scope of invitation

Question 27

What is duty owed to “Invitee”?

Answer 27

• Same duty owed to licensee; PLUS

- duty to make REASONABLE INSPECTIONS to discover non-obvious dangerous conditions, and thereafter make them safe.

Question 28

What are the duties of lessor of property to lessee (tenant)?

Answer 28

Lessor must:

1. warn of existing defects;
2. of which he is aware or has reason to know; AND
3. which he knows lessee is not likely to discover upon reasonable inspection;
4. If lessor covenants to repair, he is liable for unreasonably dangerous conditions;
5. If lessor volunteers to repair, he is liable for negligent repairs

NOTE: if guest of tenant is injured, both lessor and tenant may be liable

Question 29

What is the duty of Vendor of Real Estate to Vendee?

Answer 29

Vendor must DISCLOSE to vendee:

1. concealed unreasonably dangerous conditions;
2. of which vendor KNOWS or has reason to know; AND
3. which he KNOWS vendee is not likely to discover on REASONABLE INSPECTION.

Question 30

What is “Negligence Per Se”?

Answer 30

Under certain circumstances, “duty” and “breach” can be conclusively established by the violation of an existing statute

Question 31

When can “Negligence Per Se” apply?

Answer 31

1. There must be a criminal statute
2. P must be WITHIN THE PROTECTED CLASS; AND
3. statute must be designed to PREVENT THE TYPE OF HARM suffered by Plaintiff

Question 32

What is an excuse for violating a statute so that “negligence per se” will not apply?

Answer 32

1. if compliance would cause more danger than violation; OR

2. if compliance would be beyond D’s control

Question 33

What is the rule regarding “affirmative duties to act”?

Answer 33

Generally, there is no affirmative duty to act.

But see, exceptions.

Question 34

What are the exceptions from the general rule re: “affirmative duties to act”?

Answer 34

Exceptions:

1. “Assumption of duty by action”
   - Example —> once D undertakes to aid someone, he must do so with reasonable care
   - EXCEPTION –> many states have enacted good samaritan statutes, which exempt doctors/nurses from liability for ordinary, but not gross negligence.
2. “Peril due to D’s Conduct” -
   - one has a duty to assist someone he has NEGLIGENTLY or INNOCENTLY placed in peril
3. “Special Relationship Between Parties”
   - A special relationship between parties may create a duty to act.
   - Example —> parent/child.
   - Common carriers/innkeepers/shopkeepers –> owe duties of reasonable care to aid or assist patrons
   - Places of public accommodation –> have a duty to prevent injury to guests by 3rd parties.
4. “Duty to Prevent Harm from 3rd Persons”
   - Generally, there is no duty to prevent a 3rd person from injuring another.
   - An affirmative duty may be imposed, however, if:
   (i) one has the ACTUAL ABILITY and AUTHORITY to control a person’s actions; AND
   (ii) knows or should know the person is likely to commit acts that would requires exercise of this control