Substantive Torts: General Duty of Care and Special Duty Rules Flashcards
Overview of Torts
Tort = a category of civil actions that govern situations where one individual claims that another individual has improperly caused her to suffer from physical, emotional, economic, or dignitary harm
Basically, civil wrongs!
Negligence is the KEY to torts issues.
Think of torts as a spectrum, with intentional torts on one side (most culpable), negligence in the middle, and strict liability on the other side of the spectrum (least culpable).
4 Elements of Negligence
- Duty
- Breach
- Causations (actual & proximate)
- Damages
Must analyze in order.
General Duty of Care
Ask 2 questions:
1) Did D owe P duty of care at all?
2) What level/standard of care is required?
Scope of Duty of Care
Duty of Care = obligation to take risk-reducing precautions in your activities to avoid injuring other people. Imagine that every activity you create causes “risk rays” around you, aka probabilities of harm.
D owes a P a duty of care if the P is within the range of these risk rays or “zone of danger”. That makes P a foreseeable plaintiff.
“Danger invites rescue” = rescuers are always foreseeable plaintiffs.
The essential question is: was it foreseeable that this person could have been injured?
General Standard of Care
How much care should you take and reduce the precautions of risk rays?
The test is the “reasonably prudent person” standard. This is a neutral person who always drives the speed limit and locks his car doors and obeys every law. Always careful, never careless. On most negligence fact pattern’s, D’s conduct comes up short of this standard. This is an objective standard. Doesn’t matter if you aren’t as intelligent or experienced as the average person would be. Doesn’t matter if you’re doing the best you can, you can still have liability.
2 caveats:
1) If D has above average skill or knowledge, D must exercise that skill/knowledge. What would a reasonably prudent person with D’s skill/knowledge have done? Never more lenient, just more strict.
2) What if the person is physically different? Like they have physical disability. Some subjectivity is viable: what would a reasonably prudent person with that disability do in these circumstances? In other words, a reasonably prudent blind person would be walking with a cane.
Special Duty: Standard of Care for Professionals
A doctor, lawyer, engineer, is required to both possess and exercise knowledge and skill of an ordinary member of that profession in good standing. The profession sets the standard of care. If the professional has a higher level of knowledge, they MUST exercise it. You can have higher, but not lower, level of care.
Typical doctor medical malpractice claim with informed consent rule: a doctor has a duty to provide a patient with enough information about risks so that the patient can make an informed decision about whether to proceed. Any risk that would cause a reasonable person to decline treatment should be disclosed. Any doctor who fails to disclose such a risk has breached their duty.
Age-Specific Standard of Care
The reasonable person standard applies to adults, but in contrast, the standard of care for children is subjective as applied to a child of like:
1) age,
2) education,
3) intelligence, and
4) experience.
An intelligent child would be held to a standard of similar intelligence. So a child who did something clearly negligent if an adult had done it may not be considered to have breached their duty, since their standard of care for their duty may be lower.
1) Contributory Negligence
Often comes up when a child is injured but D asserts that the child’s contributory negligence should absolve D of liability.
2) Sometimes Adult Standard imposed on Children
However, when doing adult activity, like driving a car, the child will be held to an adult’s reasonable person standard. Is it dangerous when an adult does it? If yes, probably an adult activity. Skiing is not an adult activity, but snowmobiling is. A drone is not considered an adult activity.
Standard of Care for Landowners (and Occupiers aka Tenants)
Land = physical structure and surrounding land
Duty differs when P is trespasser vs. when P is social guest vs. when P is business customer.\
- Undiscovered Trespasser - Activity on Land (No Duty) - Condition on Land (No Duty)
- Discovered Trespasser - Activity on Land (Reasonable Care) - Condition on Land (Manmade deathtrap known to landowner)
- Licensee - Activity on Land (Reasonable Care) - Condition on Land (Concealed dangerous condition known to landowner)
- Invitee - Activity on Land (Reasonable Care) - Condition on Land (Duty to inspect for dangerous conditions (reasonable care))
The questions on the exam will likely involve CONDITIONS ON THE LAND, not activities.
Standard of Care for Landowners: Trespassers
Undiscovered trespassers = no duty
Discovered trespassers = must warn them of manmade deathtraps. Commonly this happens when someone takes a shortcut across your land.
The hazardous condition must be manmade. The condition must cause death or serious bodily injury. Slippery floor does NOT count. The thing must be CONCEALED, as a TRAP. A high voltage sign + transformer is not hidden and not a trap, so it doesn’t count.
Standard of Care for Landowners: Licensees and Invitees
How do you tell these 2 apart? In both cases, they have permission to come on the land, not trespassers.
Basic rule: Licensees come onto your land for THEIR OWN purpose or business. Invitees come onto your land for a purpose related to YOUR business.
Examples:
Store customer = invitee
Social guest = licensee
Firefighter = licensee
Door to door salesman = licensee
Zoo visitor = invitee
A patron of any business is an invitee. Social guests are licensees because Like and Licensee both start with L.
Rules for Licensees and Invitees
- Licensee - Activity on Land (Reasonable Care) - Condition on Land (Concealed dangerous condition known to landowner). Gotta let people know about not just manmade traps but also natural conditions like slipping on sidewalk (as long as it’s concealed). Having a warning sign for a slippery floor can get you out.
- Invitee - Activity on Land (Reasonable Care) - Condition on Land (Duty to INSPECT for dangerous conditions (reasonable care)). Landowner is liable for any reasonably knowable concealed dangerous conditions. It’s essentially the duty of reasonable care. A reasonable inspection depends on the circumstances but the bar tests with slip and fall in grocery. The issue will usually be: how frequently was floor checked for hazards? It must be clear the landowner didn’t make reasonable inspections if they want you to find liability. But a warning is usually good enough to avoid liability. INSPECTION or WARNING
Standard of Care for Landowners: Modern Trend
Many states now say anyone entering your land is now owed a duty of reasonable care. It just simplifies the rules, but it might be noted in the fact pattern if the jurisdiction follows the “traditional” rules for landowner liability that means they follow the licensee/invitee stuff.
Standard of Care for Landowners: Child Trespassers
“Attractive Nuisance Doctrine” = landowners exercise reasonable care to lower the risk of harm to kids for dangerous conditions on the property or anything you could foresee might pose a danger to a child on the property. Courts consider whether young kids are likely to come on to the property, whether they would be too young to appreciate the danger, or how difficult it would be to reduce the danger. must lower the risk of care.
Probably not reasonable to just put up a warning sign at least for younger children (because presumably they would ignore it).
Standard of Care for Landowners: Firefighters
Treated like licensees rather than invitees.
Firefighters’ Rule = first responders treated as licensees, not invitees. Probably not gonna be liable if a firefighter falls because of loose handrail. As matter of public policy, first responders assume the risk of going into random homes.
