The Six Non-Default/Specific/Non-RPP Duty Scenarios Flashcards
The six non-default duty situations are:
1) Negligence Claims Against Children;
2) Negligence Claims Against Professionals;
3) Premises Liability;
4) Statutory Standards of Care (Negligence Per Se);
5) Duty to Act Affirmatively;
6) Negligent Infliction of Emotional Distress
Negligence Claims Against Children, 2 elements/1 exception
1) Children Under the Age of 5 are Incapable of Negligence and Owe the World NO Duty of Care;
2) Children Between the Age of 6 and 18 must exercise the care of a hypothetical child of the same age/experience/intelligence under the same circumstances;
EXCEPTION: When a child is engaged in an adult activity (such as operating a motor vehicle), must behave as RPP.
If an unintelligent 9 year-old is riding a tricycle for the first time and hurts another individual, his behavior is compared to a hypothetical
dumb, 9 year-old, first-time tricycle rider. The hypothetical person, when a claim is brought against a 6-18 year-old is tailored to that child, as opposed to the normal, objective RPP standard. (Children -> Subjective Reasonable Person; Adults -> Objective Reasonable Person)
Negligence Claims Against Professionals, 2 elements:
1) A professional owes the duty of care of an average member of that profession practicing in a similar community;
2) The standard is uniform against every other professional in that specific economy (i.e. lawyers judged against lawyers, not professionals in general.)
The Requirement of Conformity holds that
“The customary practice sets the standard of care.”
By substituting “average” for “reasonable,” when evaluating professional duties, the analysis indicates a shift from
the objective, imaginary RPP and towards an empirical, real, person in the profession. Empirical!
The two specific types of medical malpractice are:
1) Errors in Execution (a slip of the hand)
2) Errors in Judgment (diagnosis/treatment mistakes)
Premises Liability relates to situations in which
an entrant to property is injured, and the court must determine the duty owed by the Possessor (not owner!) of land to the injured party.
The duty owed under Premises Liability is determined by
the nature of the Entrant.
The Four Different Duties of Care/Potential Entrants Under Premises Liability are:
1) Undiscovered Trespasser;
2) Discovered Trespasser;
3) Licensees;
4) Invitees.
The Premises Liability Duty of Care Owed to the Undiscovered Trespasser is:
NONE! No duty is owed by the party possessor to the undiscovered trespasser.
The Premises Liability Duty of Care Owed to the Discovered/Anticipated Trespasser is (4 elements):
1) The duty is to protect the trespasser from artificial conditions of the property that are;
2) Highly dangerous artificial conditions, which are:
3) Conditions Concealed from the Trespasser and are;
4) Known by the Possessor in Advance.
The Condensed Version of the Duty of Care Owed to Discovered/Anticipated Trespasser:
Possessor must protect discovered/anticipated trespasser from known, man-made, hidden death traps.
A Licensee is
Those who enter onto property with (limited) permission, but do not confer economic benefit. (e.g. Social Guest, Door-to-Door Solicitors)
The Duty a Possessor owes to a Licensee is
to protect the Licensee from dangerous conditions, concealed to the Licensee but known to the Possessor.
In Invitee is
one who comes on the land of another and confers economic benefit to the land’s Possessor OR comes onto land that is open to the public at large
The Possessor needs to protect a Licensee from
A dangerous condition that is concealed from the invitee, that the Possessor knew about or should have discovered through reasonable effort.
The two general exceptions to Premises Liability are:
1) Firefighters/Police Officers are never able to recover for injuries that are an inherent risk of the job.
2) Trespassing CHILDREN are owed a duty of reasonable/prudent care by the property possessor for dangerous, artificial, hazardous conditions (known as the “Attractive Nuisance Doctrine” or the “Kid Magnet” rule)
Two ways a Possessor may protect themselves from liability for dangerous conditions on their property:
1) Fix the dangerous condition; OR
2) Give Warning of the dangerous condition.
The Statutory Standards of Care/Negligence Per Se Doctrine is a means of establishing
a defendant’s duty of care, and potential breach of that duty, using the language of a criminal statute that the defendant allegedly violated.
When is a plaintiff allowed to use a criminal statute/negligence per se to establish defendant’s duty and liability? Plaintiff must show:
1) The Plaintiff is a member of the persons the statute is designed to protect; AND
2) The Plaintiff must show that the accident at hand is of the type the given statute is trying to prevent.
Put more succinctly, the required showing of the Negligence Per Se doctrine is
the plaintiff meets the “Class-of-Person/Class-of-Risk” test
Exceptions to using Negligence Per Se (2):
1) If Statutory Compliance would have been MORE dangerous than disobedience;
2) If Statutory Compliance would have been impossible under the circumstances.
Duty to Act affirmatively generally holds
there is NO duty to act affirmatively or take a course of action, thus no duty to rescue a person in peril.
Exceptions to the non-duty to act affirmatively:
1) If there is a pre-existing relationship between the person in peril and the defendant (such as innkeeper/guest, common carrier/passenger) that will trigger the defendant’s duty to take reasonable measures
2) If the defendant caused the peril, whether through negligence or not, the defendant has a duty to act
Under the exceptions that DO give rise to a duty to act affirmatively, the duty to act is a duty to
act reasonably under the circumstances, as a RPP.
Although there is no general duty to act affirmatively, a VOLUNTARY rescuer will
be held liable for “screwing up” the rescue.
The Tort of Negligent Infliction of Emotional Distress involves
non-physical, but emotional, harm to the Plaintiff by the Defendant’s careless conduct.
Negligent Infliction of Emotional Distress has four distinct categories, they are:
1) Near-Miss Cases;
2) Bystander Cases;
3) Relationship Cases;
4) Fear From Toxic Exposure Cases.
The elements of a Near-Miss Negligent Infliction of Emotional Distress are:
1) Plaintiff must show they were placed in a zone-of-danger caused by the Defendant’s negligence; and
2) Plaintiff must demonstrate subsequent, physical manifestations of the claimed distress.
In Bystander Cases of Negligent Infliction of Emotional Distress, where the Defendant injured a third-party, the plaintiff must demonstrate:
1) A close family relationship to the injured party;
2) That they, the plaintiff, actually witnessed (were physically present at) the injuring or fatal accident.
Fear From Toxic Exposure Negligent Infliction of Emotional Distress cases involve three elements:
1) A negligent defendant released a pollutant;
2) Individuals in the vicinity did not get sick, but fear getting sick;
3) There is a scientific basis for such fear of getting sick.
