Special Negligence Duties Based on Type of Defendant

Question 1

what are the special negligence duties based on the type of defendant?

Answer 1

1) children
2) Professionals
3) Possessors of land

Question 2

1) children

Answer 2

children are held to the standard of a CHILD of like age, intelligence, and experience.

this is a SUBJECTIVE test.

A child under 5 is usually without the capacity to be negligent

Question 3

what standard of duty are children held to when they are engaging in a “dangerous adult activity”?

Answer 3

children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care

Question 4

VA CHILD DUTY OF CARE DISTINCTION - AGES

Answer 4

Child below the age of 7 is deemed incapable of being negligent.

For children ages 7-14, there is a rebuttable presumption that a child cannot be negligent.

Question 5

2) Professionals

Answer 5

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 standard

Question 6

PROFESSIONALS - VA DISTNCTION

Answer 6

Professionals → VA generally has a statewide standard of care rule for physicians.

However - locality standard of care will be followed if the party shows that the availability of healthcare services and facilities and the customary practices in the locality make that standard of care more appropriate than a statewide standard.

Question 7

what duties does a doctor have

Answer 7

a doctor has a duty to disclose the RISKS of treatment to enable the patient to give 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.

Question 8

3) Possessors of land

Answer 8

under the traditional rule followed in many sates, the duty owed to a plaintiff on the premisses - for dangerous conditions on the land depends on the P’s status as either:
a) unknown trespasser,
b) known trespasser,
c) licensee, or
d) invitee

Question 9

a) unknown trespasser

Answer 9

NO DUTY is owed to an undiscovered trespasser

Question 10

b) known trespasser

Answer 10

as to a DISCOVERED or ANTICIPATED trespasser, the land possessor must WARN or MAKE SAFE ANY CONDITIONS that are:
- artificial
- highly dangerous (involving risk of death or serious bodily harm)
- concealed
- known to the land possessor in advance

Question 11

c) licensees

Answer 11

a licensee is one who enters onto the land with the possessor’s permission for their OWN PURPOSE OR BUSINESS, rather than for the possessor’s benefit.

Social guests are considered licensees.

Question 12

what type of duty is owed to a licensee?

Answer 12

The land possessor has a duty to warn or make safe hazardous conditions that are:
a) concealed;
b) known to the land possessor in advance

the land possessor must also exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.

Question 13

what are firefighters/ police officers considered when on the land of the land possessor?

Answer 13

they are considered typically licensees - because they often enter the property with implied consent, on public policy grounds, they are owed no duty of care regarding risks that are inherent in their job

Question 14

d) Invitees

Answer 14

invitees enter onto the land in response to an invitation by the possessor of the land (meaning that they enter for a purpose connected with the business of the land possessor OR enter as members of the public for purpose for which the land is HELD OPEN TO THE PUBLIC.

Question 15

when does an invitee lose their ‘invitee’ status?

Answer 15

an invitee will lose their invitee status if they exceed the scope of invitation.

Question 16

what duty is owed to invitees?

Answer 16

The landowner or occupier owes a duty to invitees regarding hazardous conditions that are:
a) concealed
b) known to the land possessor in advance or COULD HAVE BEEN DISCOVERED by a reasonable inspection

Question 17

trespassing children - what is the “attractive nuisance doctrine”

Answer 17

most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.

To establish the doctrine’s applicability, the P must show:
1) 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 (it is dangerous because of the child’s inability to appreciate the risk)
4) the expense of remedying the situation is slight compared with the magnitude of risk

**the fact that the condition is attractive is alien not enough for liability; the child also does not have to be attracted onto the land

Question 18

VIRGINIA DISTINCTION - “attractive nuisance doctrine” // degree of care owed to children

Answer 18

VA rejects the “attractive nuisance doctrine”. VA does however recognize the fact that, where children are concerned, the degree of care to be exercised is greater than where adults alone are involved.

Question 19

duty owed to USERS OF RECREATIONAL LAND

Answer 19

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 warn of a dangerous condition or activity

Question 20

what is the duty of possessor to those off premises?

Answer 20

there generally is no duty to protect someone OFF the premises from NATURAL CONDITIONS on the premises

however - there is a duty for unreasonably DANGEROUS ARTIFICIAL CONDITIONS or structures abutting adjacent land

one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises

Question 21

what are the duties of lessor and lessee of realty?

Answer 21

the LESSEE has a general duty to MAINTAIN the premises.

the LESSOR must warn of EXISTING DEFECTS of which they are aware of have reason to know, and of 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.

Question 22

what are the duties of a vendor of realty?

Answer 22

a vendor must DISCLOSE to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.