Special/ Affirmative Duties

Question 1

Duty analytic framework

Answer 1

Is there a general duty (acted unreasonably), if not is there a special duty?

(1) General duty: Did the actor create a risk of physical harm or injury to others through the conduct (did they act unreasonably)? → if yes, apply reasonable person standard;
IF NOT

(2) Special/Affirmative duty: can a duty be imposed by affirmative duty?

Question 2

Duty to Rescuers

Answer 2

Rescue doctrine: Defendant owes the rescuer who becomes injured in the voluntary act of saving another similar duty they owed the person tortfeasor imperiled.

ELEMENTS
(1) defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued
(2) the peril or appearance of peril is imminent to
(3) a reasonably prudent person would have concluded such peril or appearance of peril existed
(4) the rescuer acted with reasonable care in effectuating rescue

Question 3

Special Affirmative Duties

Answer 3

Generally the reasonable person does not have a duty to aid, help, rescue, warn, control, unless there is a (1) special relationship, (2) there is a voluntary undertaking or (3) prior conduct creating risk.

Question 4

What case establishes that, Generally, there is no duty to act/rescue?

Answer 4

Yania v. Bigan - The Court found no duty b/c Yania knew or should have known of the potential danger involved in the operation due to his coal mining experience, and 2) Bigan conduct did not create the risk. Yania had full mental faculty to decide what he was doing.

Question 5

Firefighter Rule

Answer 5

Exception to Rescue doctrine:

Firefighters and police officers are barred from using rescue doctrine when they are injured by the negligence they are called to respond to; but can sue for negligent conduct occurring after the officer/firefighter finishes job they were called for

1. ) They aware of the inevitable physical perils and are paid to encounter risks/confront risks (taxpayer’s future negligence) and diminish risks by citizens (similar to Creasy case).
   2.) Liability for taxpayers would be double taxation

Case: fuel truck (no); heart attack (no)

Question 6

Affirmative Duty: Voluntary Undertaking. Explain the Duty Rule.

Answer 6

Duty: Anyone who affirmatively undertakes a duty to rescue someone from peril must do so in a safe and reasonable manner so as to not leave the person in a worse position than when they took charge.

Question 7

For a Voluntary Undertaking: How does the actor breach the duty of a reasonable person under the circumstance?

Answer 7

(1) Leaves Plaintiff in a worse position or (2) Excludes Plaintiff from others’ help b/c the actor undertook the duty.

(Lawter - started the rescue into the helicopter, but the rope snapped as Plaintiff was lifted)

Question 8

What Special Relationships have we learned?

Answer 8

Common Carrier; Inkeeper; Business; Employer; School; Landlord; Spouses; Medical Professionals; Parent-Child

Question 9

Affirmative Duty: Prior Conduct Creates the Risk. Explain Rule.

Answer 9

When an actor’s conduct places others in peril, you have an affirmative duty to exercise reasonable care to prevent further harm (take steps to rescue or seek help from other when a risk is created)

Question 10

What is the duty owed by an Innkeeper or Business to a Guest? (or a Common-Carrier to Passenger)

Answer 10

Duty to take reasonable action to (1) protect them against unreasonable risks of harm and (2) to give them first aid after it knows or has reason to know the guest is ill or injured, and to care for them until they can be cared for by others.

(Lundy - Casino case with medical staff that fulfilled their duty of reasonable care. The court found that the duty does not require the proprietor to provide ALL medical care that a patron might reasonably need.)

Question 11

Prior creation of risk

Answer 11

Duty of reasonable care to effectuate some rescue or seek help from others when a risk is created.

Question 12

When does the affirmative duty to rescue/aid/warn end for a special relationship? (limits)

Answer 12

At the time, the special relationship ends.

Boyette (Airline Passenger) - P safely reached his destination but was chased around by an airline representative for stealing a golf cart, which then led to the Plaintiff’s eventual death.

R: Generally, a common carrier has a duty to exercise the highest degree of care to safely transport its passengers and protect them while in transit. However, the carrier discharges its duty once the passenger reaches a reasonably safe place.)

Question 13

Under which element(s) of negligence does the Primary Assumption of the Risk go to & why?

Answer 13

Duty + Breach: b/c if the person had a primary assumption of risk, then a duty was never owed to that person, and there could not have been a breach.

(Hopper)

Question 14

Impact Rule (NIED)

Answer 14

Direct claim: victim is within the zone of danger

(1) Negligent act by defendant
(2) negligence resulted in the most trivial bodily contact
(3) fright results in physical consequences

Case: train crushes car (soot)

Question 15

What needs to be true for the Primary Implied Assumption of the Risk to release the Defendant from liability?

Answer 15

1. △ acted reasonably (b/c Π assumed risk)
2. Π assumes inherent risk/danger in the sport or recreational activity

If both stand, then there is No Duty to prevent harms associated with inherent risk. (Hopper - P was aware of the inherent risks of the game and was hurt as a result. The court found that D cannot be liable for negligence when the dangers involved in the game were obvious and necessary)

Question 16

Zone of Danger (NIED)

Answer 16

Direct claim: victim is within the zone of danger

(1) negligence by defendant
(2) such negligence causes fright
(3) in immediate zone of danger
(4) fright causes physical consequence

Case:

Question 17

What is the duty owed by Defendant when Plaintiff assumes the inherent risk/danger in a sport or recreational activity?

Answer 17

Duty to not unreasonably increase the risk

(Skiing case - Inherent risk in skiing, but the accident the Plaintiff suffered was due to the employee’s act of jumping off the crest, which he knew was dangerous –> D could be liable if P. can prove the accident could be prevented through the use of ordinary care b/c the employee’s act was not an inherent risk assumed)

Question 18

Dillon/Foreseeability Test (NIED)

Answer 18

Bystander who witnesses accident may recover for ED if witness-plaintiff was

(1) located near the scene
(2) emotionally injured by the contemporaneous sensory observance of the accident; and
(3) closely related to the victim.

Case: Dillon, Fiance (no NIED)

Question 19

NIED

Answer 19

• No general duty not to negligently inflict emotional distress
• Parasitic derivative claim→ not a independent/freestanding cause of action→ must be in connection with another breach of duty imposed by law

Question 20

What is so unique about landowner/occupier duty?

Answer 20

Duty is limited by the nature of owning land and depends on the entrant’s status.

Question 21

Economic Harm Rule

Answer 21

• No duty unless personal injury or property damage. There must be proof of the extent of damages and the causal connection between negligence and damage

-special relationship is within zone, can be based on K

-Exception: fishermen

Question 22

Who consists of the Traditional Trichotomy in premises liability cases? Recite them in the order of the highest duty of care owed to them.

Answer 22

Invitee
Licensee
Trespasser

Question 23

Invitee Definition

Answer 23

Enters the premises in response to the landowner’s express or implied invitation and for the mutual benefit of both parties.

Question 24

Two types of Invitee (know this to be able to tell when someone is an invitee in the fact pattern)

Answer 24

Public Invitee - a person who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public (museums, churches, airports)

and

Business Visitor - a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Question 25

The duty owed to the Invitee for dangerous activities conducted on the land

Answer 25

Duty of Reasonable Care

Question 26

The duty owed to the Invitee for dangerous conditions on the land

Answer 26

Duty of Reasonable care for known dangers and risks owner should be aware of after reasonable inspection

(Richardson - Bar Ceiling - The plaster from the ceiling fell on the plaintiff’s head, and D should have known of the risks of the plaster falling if D had conducted reasonable inspection. The inspector after the accident, revealed that it had collapsed due to age and time. D could have conducted the repairs to prevent the harm)

Question 27

How do you prove Defendant had constructive knowledge of the dangerous condition that caused the plaintiff’s harm?

Answer 27

To prove by circumstantial evidence that a defendant had constructive notice of a dangerous condition, a plaintiff must show that it is more likely than not that the dangerous condition existed long enough to permit a shop owner to have a reasonable opportunity to discover the condition.

(Walmart - Macaroni case - The Plaintiff slipped on a macaroni in the store, claiming Walmart breached their duty b/c the macaroni had been there long enough for Walmart to know about it. “the dirt” “tracks.” The court held that there was not enough evidence to prove D had constructive notice of the condition.)

Question 28

What is the open and obvious danger doctrine that negates a property owner’s duty to an invitee?

Answer 28

A landowner’s duty to protect invitees against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence. (NO DUTY TO WARN).

Requires an objective analysis - ask whether the dangerous condition was so obvious that D would be reasonable in thinking that an ordinary person would perceive it and avoid it.

O’Sullivan (Swimming Pool) - Because the danger of diving into the shallow end of a swimming pool is open and obvious to a person of average intelligence, the D’s had no duty to warn the plaintiff of this danger

Question 29

Which case rejects the Trichotomy, and what is the result?

Answer 29

Nelson v. Freeland (Porch Stick) - P. picked up his D. (boss) at his house for a business
meeting the two were attending. P tripped over a stick that D had left lying on his floor.

The court had trouble determining the Plaintiff’s status so decided that the Landowner owes both the invitee and licensee a duty of care as a reasonable person under the circumstances. Trespassers are still treated with a lower standard of care.

Question 30

Who is held to a professional standard of care?

Answer 30

Doctors (Hippocratic oath)
Lawyers (Rules of Professional Conduct)
Accountants

Question 31

Duty of Professional

Answer 31

A professional person is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

Question 32

What influences the standard of care for professionals?

Answer 32

Customs and practices that are set in the profession.

Osborn (Blood bank) - Experts testified that blood testing and donor screening practices at the time were consistent with other blood banks across the country. There was no custom to conduct testing to screen for HIV, so the Plaintiff could not prove that D’s conduct fell below the professional standard of care.

Question 32

What are the factors when determining whether a group should be held to the professional standard of care?

Answer 32

1. Special Relationship (reliance or vulnerability)
2. Is the professional driven by public well-being over profitability?
3. Does the profession have its own independent regulations? (indicates an interest in protecting the public)

(Rossell - auto manufacturers are not held to the professional standard of care since they operate based on profit and have no SR with their customers, therefore cannot be trusted to set their own standards of reasonable prudent conduct)

Question 33

How do you prove a breach of duty for professionals, and what evidence is necessary?

Answer 33

If the custom sets the standard of care, then establishing that the professional did not adhere to that established custom proves breach.

The evidence required: qualified expert testimony to establish both the applicable standard of care and D’s deviation from the standard.

Question 34

What is the Informed Consent doctrine?

Answer 34

1. Consent before treatment
2. Treatment not negligent
3. But must inform of material risks to make an informed decision – material risks (and alternatives) that would influence a patient’s decision – likely to affect the outcome

Question 35

Doctor Duty

Answer 35

Tortfeasor has special relationship with one who is the source of the victim’s harm

doctors owe duty to control patients and warn imperiled third parties

Case: therapist (no breach b/c warned victim)
-Rocky mountain disease (Yes, breach b/c didnt warn wife)

Question 36

Employer Duty

Answer 36

Duty to protect third parties from conduct of employees.

• when b/c of an employee’s incapacity, and employer exercises control over the employee, the employer has duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing and unreasonable amount of harm; not absolute duty to insure safety, only reasonable care

-Drunk driving employee (yes)

Question 37

What is the duty of the doctor under Informed consent?

Answer 37

Duty to disclose all material risks incident to treatment (material risk = any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery/medical treatment)

Scott v. Bradford (Hysterectomy) - P’s physician advised that she had several fibroid tumors in her uterus. Referred to a surgeon to perform the procedure. After surgery, P suffered more problems as a result. Suing for lack of informed consent of the risks that resulted. H: The jury reasonably concluded that D offered sufficient information to P to avoid liability.

Question 38

What are the exceptions to the Doctor’s obligation to disclose of all material risks?

Answer 38

• Risk is a commonly known risk;
• Patient is unconscious;
• Patient waives or refuses the information;
• Patient is incompetent (although the physician must make a reasonable attempt to secure information from a guardian); or
• Disclosure would be too harmful to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack)

Question 39

When does the informed consent doctrine allow for recovery?

Answer 39

The patient must have given consent to the treatment and suffer a material risk that was not disclosed prior to consenting.

1. Breach of duty: D failed to inform P adequately of a material risk before securing his consent to the proposed treatment;
2. But-For Causation: If P had been informed of the risks, P would not have consented to the treatment;
3. Injury: The adverse consequences that were not made known did, in fact, occur, and P was injured as a result of submitting to the treatment.

Question 40

What is the privity rule, and how does it apply to legal malp cases?

Answer 40

Privity is a direct contractual relationship between both parties, and the Privity Rule denies a COA to all third parties whom the attorney did not represent.

Barcello III (Will) - Rule: Attorneys owe a duty of care only to his/her client, not to third parties who may have been damaged by the attorney’s negligent representation of the client. F: The grandchild, beneficiaries of the grandfather’s will, claiming Atty was negligent in causing the will to be invalid and thus breached a duty owed to beneficiaries.

Question 41

Trespasser Definition

Answer 41

One who comes onto the land without permission or privilege.

Question 42

Two categories of trespassers and the duty owed to each.

Answer 42

Mere Trespasser - Duty to avoid willful/wanton harm (gross negligence)

Criminal Trespasser - Duty to not intentionally injure

Ryals (Criminal Trespasser) - Brothers trespassed the mines for the purpose of stripping out the copper, brass, and other metals. Ryal’s contact with the switchboard caused burns, and he died. H: U.S. Steel Corp did not breach its duty to not intentionally injure the trespasser. There were obvious signs of danger around the switch rack.

Question 43

What is the duty owed to child trespassers?

Answer 43

Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm caused by artificial conditions on the land.

Question 44

What must the child trespasser prove under the Attractive Nuisance doctrine to find D liable for physical harm suffered?

Answer 44

(1) the child is likely to trespass (2) the owner knows or should know there is an unreasonable risk of harm or death (3) the child would not recognize the risks (4) the utility of maintaining the condition and the burden of eliminating the danger is slight compared with the risk to children (5) the owner fails to exercise reasonable care of a prudent property owner.

Bennet (Swimming pool) - The kid trespassed into the neighbor’s pool, the mother jumped to save him from drowning, and both drowned. H: The attractive nuisance doctrine holds possessors to a standard of reasonable care if the possessor knows or has reasons to know of the attractive nuisance. The court is likely to find the owner liable.

Question 45

Licensee Definition

Answer 45

Enters on the land with the landowner’s permission, express, or implied, for their own purposes or business rather than for the landowner’s benefit.

Also known as a social guest. The performance of minor services for the host does not make the guest an invitee

Question 46

The duty owed to the licensee?

Answer 46

1. With regard to dangerous activities –> Duty to avoid gross negligence
2. With regard to dangerous conditions on the land, –> duty of ordinary care to warn or make safe for known dangers.

Knorpp (BF cutting tree) - No duty to warn a licensee when no dangerous condition existed (the tree was not dangerous) until it was created by the licensee (BF did not cut the tree properly, and it caused it to fall over him)