Special Negligence Duties Based on Type of Defendant Flashcards
Children
- held to standard of a child of similar age, intelligence, + experience
- SUBJECTIVE test
- child under five usually w/o capacity to be negligent
Exception to the Standard for Children
- children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care
Professionals
-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
Duty to Disclose Risks of Treatment
- 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
Possessors of Land
- 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
Standard for Unknown Trespassers
- NO duty is owed to an undiscovered trespasser
Standard for Known Trespassers
- 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
Licensees - Definition
- 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
Standard for Licensees
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
Invitees - Definition
- 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
Invitees - Standard
- 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)
Trespassing Children - Standard (General Concept)
- 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
Attractive Nuisance Doctrine - Elements
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
Duty Owed to Users of Recreational Land
- 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
Duty of Possessor to Those Off Premises
- 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
Duties of Lessor and Lessee of Realty
- 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
Who is liable if guest of tenant is injured?
- landlord may be liable as lessor
- tenant may also be liable due to status as owner/occupier of the premises
Duties of Vendor of Realty
- 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
