T6 - Special Stds Flashcards
SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT
- Children
- Professionals
- Possessors of Land
4.
CHILDREN:
Special standard of care for Children
Children are held to the standard of a child of like age, intelligence, and experience.
This is a subjective test.
Under 5: No standard (cannot be held liable for negligence): A child under five is usually without the capacity to be negligent.
Age 5-18: Hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
- Subjective standard (very Defendant friendly)
Exception: If child is engaged in adult activity - then we apply a reasonably prudent person standard.
- Most common: Operating a motorized vehicle (including watercraft, farm equipment, jet ski, snow mobile).
Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care.
PROFESSIONALS: Special standard of care for Professional
Duty of Doctors?
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 conduct.
- Malpractice claim
- Same care as average member of profession providing similar professional services
Key distinction from normal standard: “Average” NOT “reasonable”.
- Compae to real world, not imaginary colleages.
- Empirical standard.
Expert witness often used to educate jury on professional CUSTOM.
National standard of care is used
But, use national standard of care for that specialty.
Duty to Disclose Risks of Treatment: A doctor has a duty to disclose the risks of treatment to enable a patient to give an 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.
POSSESSORS OF LAND: Special standard of care for possessors of Real estate/ Land
Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as unknown trespasser, known trespasser, licensee, or invitee.
- Premises liability
- Possessor not always the owner (if u rent an apartment, this std applies to you).
- establishes rules for duty to protect from dangerous conditions (rickety chair, chandelier). Conditions, NOT activities.
— Activities conducted on land use ordianry reasonably prudent standard of care.
Standards of care depends on status of entrant: NEXT CARD.
Standards of care depends on status of entrant:
Standards of care depends on status of entrant:
- unknown/undiscovered tresspasser: Owe them NO DUTY at all.
- Known/Anticipated tresspasser (includes people who frequently trespasses in the past). [Duty to protect from known, man-made death traps].
- Duty if:
— ARTIFICIAL Condition (no duty to protect them from naturally occuring conditions like snow or ice)
— HIGHLY DANGEROUS (conditions that could kill them or seriously maim them) (no duty to protect them from minor conditions)
— Condition must be CONCEALED from tresspasser (not apparent or visible), an open or obvious condition has no duty.
— KNOWN by possessor (Defendant). - Licensee: Enters land with permission but without financial benefit to possessor. Applies to Social guests, Solicitors that come up to your door (implied consent).
- 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.
- Duty to protect from all known traps.
- Duty to warn or make safe hazardous conditions that are:
— CONCEALED from licensee
— KNOWN by possessor in advance (Defendant)
- land possessor must exercise reasonable care in the conduct of “active operations” on the property.
- The possessor has NO duty to inspect or repair. - Invitee: Enter land with permission for financial benefit of possesor. Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public).
- An invitee will lose invitee status if they exceed the scope of the invita- tion.
- Duty to protect from all reasonably known traps.
- Includes when open to public at large. Even if they didnt actually financially benefit.
- DUTY regarding hazardous conditions IF:
— CONCEALED from invitee
— EITHER KNOWN by possessor OR Could have discovered through reasonable inspection (reasonably thorough inspection dont have to be perfect - like inspecting every 3 months - think about cost, risk of property, reasonable interval of inspection)
- unknown/undiscovered tresspasser
- unknown/undiscovered tresspasser: Owe them NO DUTY at all.
- Known/Anticipated tresspasser
- Known/Anticipated tresspasser (includes people who frequently trespasses in the past). [Duty to protect from known, man-made death traps].
- Duty if:
— ARTIFICIAL Condition (no duty to protect them from naturally occuring conditions like snow or ice)
— HIGHLY DANGEROUS (conditions that could kill them or seriously maim them) (no duty to protect them from minor conditions)
— Condition must be CONCEALED from tresspasser (not apparent or visible), an open or obvious condition has no duty.
— KNOWN by possessor (Defendant).
For Active Operations, duty of reasonable care
- Licensee:
- Licensee: Enters land with permission but without financial benefit to possessor. Applies to Social guests, Solicitors that come up to your door (implied consent).
- 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.
- Duty to protect from all known traps.
- Duty to warn or make safe hazardous (Dangerous) conditions that are:
— *Applies to Artifical OR Natural conditions
— CONCEALED from licensee (nonobvious)
— KNOWN by possessor in advance (Defendant)
- land possessor must exercise reasonable care in the conduct of “active operations” on the property.
- The possessor has NO duty to inspect or repair.
- Invitee:
- Invitee: Enter land with permission for financial benefit of possesor. Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public).
- An invitee will lose invitee status if they exceed the scope of the invita- tion.
- Duty to protect from all reasonably known traps.
- Includes when open to public at large. Even if they didnt actually financially benefit.
- DUTY regarding hazardous conditions IF:
— CONCEALED from invitee
— EITHER KNOWN by possessor OR Could have discovered through reasonable inspection (reasonably thorough inspection dont have to be perfect - like inspecting every 3 months - think about cost, risk of property, reasonable interval of inspection)
AKA: Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe
- land possessor must exercise reasonable care in the conduct of “active operations” on the property.
How does landlowner satisfy the premises liability duty?
• Eliminate hazard condition
- Repair
- Replace
- Remove
• Warn about hazard condition (warning has to be sufficiently comlpete so it communicates the nature of the danger to the person that receives the warning.
- Can satisfy with a sufficient sign.
Firefighters and Police officers
Enter property with implied consent, but they have their own treatment for premises liability.
• Owed NO duty of care with regards to the risks inherent to the job, even if risk created by neglgience of owner. (firefighter rule).
Trespassing children: duty to protect them
—Attractive Nuisance Doctrine
• Reasonably prudent care under circumstances to protect them from artificial hazards
- if it is highly unlikely that children will trespass, it is reasonable to leave hazardous conditions on the land.
• Attractive nuisance doctrine: If there’s something on the land that draws children in, you have notice and D has duty to take precautions.
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 plaintiff must show:
• A dangerous condition on the land that the owner is or should be aware of
• The owner knows or should know that children might trespass on the land
• The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk)
• The expense of remedying the situation is slight compared with the magnitude of the risk
For liability to attach, the requirements above must be shown. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.
Statutory Standards of care (negligence per se).
IF u violate the express requirements of a statute, it does not matter if you had an excuse.
We borrow the statute and use it as the standard of care (instead of reasonable prudent person, we say the standard of care of the statute.)
[Class of person/ Class of risk]
• Criminal statute may replace duty of care if:
- Class of person: Plainitff is Within protected class
- Class of risk: Harm suffered is Within risks that statute is trying to prevent. (more than just accidents).
If statutory standard of care does not apply, use reasonably prudent standard of care.
BUT EXCEPTIONS to statutory std of care: below
EXCEPTIONS to statutory std of care.
• Compliance would have been more dangerous.
• Compliance would have been impossible (heart attack while driving)
These are both measured by reasonably prudent person standard.
DUTY OF POSSESSOR OF LAND TO THOSE ON THE PREMISES-
Statuts of Entrant: Undiscovered Trespassor
Artificial Conditions:
Natural Conditions:
Active Operations:
DUTY OF POSSESSOR OF LAND TO THOSE ON THE PREMISES-
Statuts of Entrant: Undiscovered Trespassor
Artificial Conditions: NO DUTY
Natural Conditions: NO DUTY
Active Operations: NO DUTY
