Special duty rules (pt4) DUTY BASED UPON VICTIM’S STATUS Flashcards
Primary assumption of the risk (Inherent Danger)
Primary assumption of the risk is just a particular way that a court can declare as a matter of law that the defendant is not liable to the plaintiff in negligence, either because there was no duty to prevent harms associated p. 381with inherent risks, or because there was no unreasonable conduct by the defendant. It is technically not an affirmative defense but simply another way of saying that the plaintiff has failed to prove negligence. It applies when the particular risk is either desirable or not one that can be avoided through the exercise of reasonable care (amusement park and ski board case)
Duty upon trespasser
*Ordinary “mere” Trespasser duty = refrain from gross negligence
*“Criminal” Trespasser duty = refrain from intentionally injuring them (Ryals)
Duty upon Invitee
reasonable care to keep the premises in a reasonably safe condition and to warn of any known dangerous conditions that are not open and obvious
Duty upon licensee
The duty to exercise reasonable care to warn the guest of dangerous conditions that the property owner is aware of, but that are not easily discoverable by the licensee.
who falls under the category of an invitee?
- (1) either a public invitee or a business visitor.
- (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
- (3) A business visitor is 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.
- Mutual benefit
- Public Invitee-open to the public (library)
- Business invitee - enters the property for business dealings (store owner),
who falls under the category of a licensee?
anyone who is * On land by consent
*For their own or someone else’s benefit,
Liability under attractive nuisance
A possessor of land is liable for harm to a child trespasser caused by an artificial condition if the possessor knows or has reason to know that children are likely to trespass near the condition, the possessor knows or has reason to know that the condition causes an unreasonable risk of serious injury to child trespassers, the children because of their youth do not discover the condition or recognize the risk involved, the utility of the condition to the possessor and the cost of eliminating the danger are slight compared to the risk to child trespassers, and the possessor fails to exercise reasonable care in eliminating the danger or in protecting the child trespassers.
How does Time factor into negligence liability for a dangerous condition?
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.
Open and Obvious dangers
If the danger is open and obvious, we do not owe a duty to the defendant (diving in shallow water).
Liability for injury (for an invitee)
Anyone who is present on a business premise, the business owes you a duty of reasonable care which includes calling the police when criminally attacked (Taco Bell case employee watching the fight).
Would be liable for injuries sustained by a business invitee from a condition on his premises if the possessor (1) knows or should know of the condition and realizes it involves an unreasonable risk of harm to an invitee; (2) realizes that the invitee will not discover the danger or will be unable to protect themselves against it, and (3) fails to exercise reasonable care to protect the invitee against the danger. (collapsing ceiling case).
Modern Rejection of Three Categories (Licensee, trespasser, and invitee)
A lot of jurisdictions abolished complex, confusing, and unpredictable state distinctions between licensees and invitees, and established a standard of reasonable care toward all lawful visitors (Trespasser duty remains the same) (Nelson v. Freeland).
