Special Negligence Duties Based on Type of Defendant

Question 1

Children

Answer 1

• held to standard of a child of similar age, intelligence, + experience
• SUBJECTIVE test
• child under five usually w/o capacity to be negligent

Question 2

Exception to the Standard for Children

Answer 2

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

Question 3

Professionals

Answer 3

-required to possess the knowledge + skill of an average member of the profession or occupation in good standing
- most courts apply national standard of care to evaluate the conduct of doctors

Question 4

Duty to Disclose Risks of Treatment

Answer 4

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

Question 5

Possessors of Land

Answer 5

• under traditionla rule followed in many states, duty owed to pl on premises for dangerous conditions on the land depends on pl’s status

Possible categories:
- unknown trespasser
- known trespasser
- licensee
- invitee

Question 6

Standard for Unknown Trespassers

Answer 6

• NO duty is owed to an undiscovered trespasser

Question 7

Standard for Known Trespassers

Answer 7

• applies to discovered or anticipated trespassers

Land possessor must warn of or make safe any conditions that are:
- highly dangerous (involving risk of death or serious bodily harm)
- artificial
- concealed
- known to the land possessor in advance

Question 8

Licensees - Definition

Answer 8

• one who enters onto the land with the possessor’s permission for their OWN purpose or business (not for possessor’s benefit)
• social guests generally considered licensees
• firefighters + police typically licensees, BUT owed no duty of care regarding risks inherent in their job

Question 9

Standard for Licensees

Answer 9

Land possessor has a duty to warn of or make safe hazardous conditions that are:
- concealed
- known to the possessor in advance

• no duty to inspect or repair
• possessor must exercise reasonable care in the conduct of “active operations” on the property

Question 10

Invitees - Definition

Answer 10

• enter onto land in response to an invitation by the possessor of the land
• enter for the business of the land possessor OR as members of the public for purposes for which the land is held open to the public
• will lose invitee status if they exceed the scope of the invitation

Question 11

Invitees - Standard

Answer 11

• landowner or occupier owes duty to invitees regarding hazardous conditions that are:
• concealed
• known to the land possessor in advance or could have been discovered by a reasonable inspection
• there IS a duty to inspect here (think landowner would also need to repair or warn)

Question 12

Trespassing Children - Standard (General Concept)

Answer 12

• attractive nuisance doctrine
• landowners have duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property

Question 13

Attractive Nuisance Doctrine - Elements

Answer 13

Pl must show:
- a dangerous condition on the land that the owner is or should be aware of
- owner knows or should know that children might trespass on the land
- condition is likely to cause injury (dangerous because of the child’s inability to appreciate the risk)
- expense of remedying the situation is slight compared with the magnitude of the risk

ALL above must be shown for liability to attach -> child does NOT have to be attracted onto the land by the dangerous conditions, nor is the attraction alone enough for liability

Question 14

Duty Owed to Users of Recreational Land

Answer 14

• 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 + maliciously failed to guard against or warn of a dangerous condition or activity

Question 15

Duty of Possessor to Those Off Premises

Answer 15

• generally no duty to protect someone off the premises from natural conditions on the premises
• BUT there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
• must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises

Question 16

Duties of Lessor and Lessee of Realty

Answer 16

• lessee has general duty to maintain the premises
• lessor must warn of existing defects of which they are aware or have reason to know, and which they know lessee is not likely to discover on reasonable inspection
• if lessor covenants to repair, they are liable for unreasonably dangerous conditions
• if lessor volunteers to repair = does so negligently, they’re liable

Question 17

Who is liable if guest of tenant is injured?

Answer 17

• landlord may be liable as lessor
• tenant may also be liable due to status as owner/occupier of the premises

Question 18

Duties of Vendor of Realty

Answer 18

• 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