Special Duties Based on Type of Defendant

Question 1

Children

Answer 1

Children are held to the standard of a child of like age, intelligence, and experience (subjective test)

A child under five is usually without capacity to be negligent

Children engaged in potentially dangerous adult activities will be required to conform to the adult standard of care

NOTE - the operation of any motor vehicle is an adult activity in which the objective standard of care will apply

Question 2

GA Children Distinction

Answer 2

A child sued in negligence has an absolute defense if they were less than 13 years old at the time of the alleged tort

However, this rule differs with respect to contributory negligence

Question 3

Professionals

Answer 3

A professional is required to possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing.

For doctors, most courts apply a national standard of care to evaluate their conduct.

Question 4

Duty to Disclose Risks of Treatment

Answer 4

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

GA - applies informed consent only to surgical procedures and specified diagnostic procedures

Question 5

Possessor of Land Duties Generally

Answer 5

Under the traditional rule, the duty owed to plaintiffs on the premises for dangerous conditions on the land depends on the plaintiff’s status as

1) unknown trespasser
2) known trespasser
3) licensee
4) invitee

Question 6

Unknown Trespassers

Answer 6

There is no duty to an undiscovered trespasser

Question 7

Known Trespassers

Answer 7

As to discovered to anticipated trespassers, the land possessor must warn of or make safe any conditions that are

1) artificial;
2) highly dangerous;
3) concealed; and
4) known to the land possessor in advance

Meaning - a duty only applies to known manmade death traps

Question 8

Licensees

Answer 8

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business (social guests, door to door salesman), rather than the possessor’s benefit.

As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are

1) concealed; and
2) known to the land possessor in advance

Additionally, the land possessor must exercise reasonable care in the conduct of active operations on the property. The possessor has not duty to inspect or repair.

Question 9

Invitees

Answer 9

Invitees enter onto the land in response to an invitation by the possessor of the land - either for a purpose connected with the business of the land owner or to enter as a member of the public for a purpose for which the land is held open to the public

The landowner or occupier owes a duty to invitees to warn of or make safe hazardous conditions that are

1) concealed; and
2) known to the land possessor in advance or could have been discovered by a reasonable inspection

Question 10

Attractive Nuisance Doctrine

Answer 10

A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on the property.

To establish the doctrine’s applicability, the plaintiff must show:
1) a dangerous condition on the land that the owner is or should be aware of;
2) the owner knows or should know that children might trespass on the land;
3) the condition is likely to cause injury because of the child’s inability to appreciate the risks; and
4) the expense of remedying the situation is slight compared with the magnitude of the risk

NOTE - the child does not have to be attracted to the land, nor is the attraction along enough for liability to attach

Question 11

Users of Recreational Land

Answer 11

A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or want of a dangerous condition or activity

Question 12

Lessor and Lessee of Realty

Answer 12

The lessee has a general duty to maintain the premises.

The lessor must warn of existing defects of which they are aware of or have reason to know of, and which they know the lessee is not likely to discover on a reasonable inspection.

If the lessor covenants to repair, they are liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable.