Torts 1--Duty Flashcards
What four elements must be met to establish a prima facie case for negligence?
- Duty - The defendant must have had a duty to conform to a specific standard of conduct to protect the plaintiff against an unreasonable risk of injury.
- Breach - The defendant must have breached the duty.
- Promixate Cause - The breach of duty must be the actual and proximate cause of the plaintiff’s injury.
- Damage - The plaintiff’s person or property must have been damaged.
Torts>Prima Facie Case
What is the duty of care?
The duty of care is a legal duty to act as an ordinary, prudent, reasonable person to take precautions against creating unreasonable risks of injury to other persons. This duty does not extend to taking precautions against events that cannot reasonably be foreseen.
Torts>General Duty of Care
Generally, to whom is the duty of care owed?
A duty of care is owed only to foreseeable plaintiffs.
Torts>General Duty of Care>To Whom Owed
Generally, to whom the duty of care is owed?
A duty of care is owed only to foreseeable plaintiffs.
Torts>Duty>To whom owed>foreseeable plaintiffs
What is the unforeseeable plaintiff problem?
The unforeseeable plaintiff problem arises when a defendant breaches their duty to one plaintiff and also causes and injury thereby to another to whom a foreseeable risk of injury might or might not have arisen at the time of the negligent act.
Torts>Duty>To whom owed>foreseeable plaintiffs
What are the 2 most common views used to determine a defendant’s liability to a second plaintiff?
Which is the prevailing view?
“The determination of the defendant’s liability to the second plaintiff depends on whether the deciding court follows Justic Andrews’ or Justice Cardozo’s view as laid out in Palsgraf v. Long Island Railroad [remember: the fireworks case].
Most courts follow the Cardozo view.
torts > duty of care > to whom is the duty owed > unforeseeable plaintiff problem > the solutions
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What is Andrews’ view on establishing the existence of a duty of care to the second plaintiff?
“The defendant owes a duty of care to anyone who suffers injuries as a proximate result of their breach of duty to someone.
In Andews’ view, the second plaintiff can establish a duty of care extending from the defendant to them by showing that the defendant has breached the duty owed to the first plaintiff.
In Palsgraf, the railroad should have been found liable for Ms. Palgraf’s injuries [the railroad breached their duty of care to the first plaintiff, so they were responsible for the injuries to the second plaintiff resulting from that breach].
torts > duty of care > to whom is the duty owed > unforeseeable plaintiff problem > the solutions > Andrews view
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According to Cardozo [and most courts], when does a defendant’s liability allow a second plaintiff to recover?
[THINK: zone of danger]
“According to Cardozo in Palsgraf, the second plaintiff can only recover if they can establish that a reasonable person would have foreseen the risk of injury to themselves in the circumstances. That is to say, the second plaintiff must be located in a foreseeable ““zone of danger””.
In Palsgraf, that meant finding that the railroad was not liable, because it had not been negligent towards Ms. Palsgraf and she was not so close to the explosives that she was in the zone of foreseeable risk.
torts > duty of care > to whom is the duty owed > unforeseeable plaintiff problem > the solutions > Cardozo view
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What duty of care is owed to rescuers?
A rescuer is a foreseeable plaintiff as long as the rescue is not reckless.
Defendant will be liable if they negligently put themself or a third person in peril and plaintiff is injured in attempting a rescue.
However: firefighters and police officers may be barred from recovering for injuries caused by the risks of a rescue based on public policy (firefighter’s rule)
Duty of Care
Are prenatal injuries actionable, and if so, what duty of care is owed to a fetus?
Prenatal injuries are actionable. There is a duty owed to a fetus. However, the fetus must have been viable at the time of injury.
In most states, a person can bring a wrongful death action if the fetus dies from the injuries.
Duty of Care
“Wrongful Life” Action Not Recognized
In most states, the failure to diagnose a congenital defect of the fetus or to
properly perform a contraceptive procedure does not permit the unwanted child to recover damages for “wrongful life,” even if the child is born handicapped.
Torts>Duty>To whom owed>foreseeable plaintiffs
Compare “Wrongful Birth” and “Wrongful Pregnancy”
The child’s parents, however, do have an action: either for failure to diagnose
the defect (“wrongful birth”) or for failure to properly perform a contracep-
tive procedure (“wrongful pregnancy”). The mother can recover damages for
the unwanted labor (medical expenses and pain and suffering). If the child
has a defect, parents may recover the additional medical expenses to care
for the child and, in some states, damages for emotional distress. If the child
is born healthy in a wrongful pregnancy case, most cases do not permit the
parents to recover child-rearing expenses, just damages for the unwanted
labor.
Torts>Duty of Care>Specific Situations>Prenatal Injuries>“Wrongful Life” Action Not Recognized.
Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction is made (e.g., the beneficiary of a will) is owed a duty of care if the defendant could reason-ably foresee harm to that party if the transaction is done negligently. Note that this is an exception to the general rule that one who suffers only economic loss as a result of another’s negligence cannot recover damages in a tort action.
Torts>Duty of Care>Specific Situations>Prenatal Injuries>Compare-“Wrongful Birth” and “Wrongful Pregnancy”.
What are the four main standards of care that can be used in an analysis of duty?
Basic standard, particular standards of conduct, standard of care in emergency situations, and standard of care used by owners and /or occupiers of land.
Torts>Duty>Standard of care
How is the basic standard of care involving “The Reasonable Person” defined?
Defendant’s conduct is measured against the reasonable, ordinary, prudent person. This objective standard includes attributes such as physical attributes that are the same as Defendant’s, average mental ability and same knowledge as average member of community.
Torts>Duty>Standard of care>Basic standard
Under the basic standard of care analysis, what sort of physical characteristics are attributed to the Defendant?
Notwithstanding application of the objective standard, the “reasonable person” is considered to have the same physical characteristics as the defendant. However, a person is expected to know his physical handicaps and is under a duty to exercise the care of a person with such knowledge; e.g., it may be negligent for an epileptic to drive a car.
Torts>Duty>Standard of care>Basic standard>Physical characeristics
Unlike the rule as to physical characteristics, _____ ______ handicaps are NOT considered.
individual mental
average mental ability
Defendant is deemed to have knowledge of things __________.
known by the average member of the community (e.g. that fire is hot)
same knowledge as avg member of the community
What are some persons held to a standard of conduct different from that of the ordinary person?
professionals, children, common carriers and inkeepers
particular standards of conduct
Who is a “professional” and what is their standard of conduct?
Professional: person who is a professional or has special skills [EX: doctor, lawyer, pilot, etc.].
Standard of conduct: must possess and exercise knowledge and skill of an ordinary member of that profession in good standing [EX: a heart surgeon might be held liable where a general practitioner would not].
torts > duty of care > to whom owed > applicable standard > particular standard > professionals
What is the duty to disclose risks of treatment?
A doctor proposing treatment must give the patient enough information about the risks so that the patient can make an informed decision [give informed consent to the treatment] about whether or not to proceed.
If an undisclosed risk is serious enough that a reasonable person in the patient’s position would have refused consent to treatment, the doctor has breached their duty.
torts > duty of care > to whom owed > applicable standard > particular standard > professionals > duty to disclose risks of treatment
How is the standard of care for children viewed by courts?
Courts take the view that a child is required to conform the the standard of care of a child of like age, education, intelligence, and experience. This is a subjective standard.
EX: an above-average intelligent child would be compared to children of the same intelligence–not necessarily their age’s typical intelligence.
torts > duty of care > to whom owed > applicable standard > particular standards > children
What standard of care is owed by the driver of an automobile to a rider?
In most jurisdictions, the duty owed by the driver of an automibile to a rider is one of ordinary care.
Torts>Duty>Automobile Driver to Guest
What duty is owed by the driver of an automobile to a nonpaying rider under guest statutes?
Under guest statutes, the driver’s only duty to nonpaying riders is to refrain from gross or wanton and willful misconduct.
*Note that guest statutes do not apply to “passengers,” i.e., riders who contribute toward the expense of the ride; they are owed a duty of ordinary care.
Torts>Duty>Automobile Driver to Guest
What are bailment duties?
In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of personal property to the bailor or otherwise dispose of it according to the bailment terms.
Torts>Duty>Bailment Duties
What duty does a bailee owe to a bailor when the bailment is for the sole benefit of the bailor?
The bailee will be held liable only for gross negligence.
Torts>Duty of Care>Applicable standard of care>Bailment duties
What duty does a bailee owe to a bailor when the bailment is for the sole benefit of the bailee?
The bailee will be held liable for slight (or worse) negligence.
Torts>Duty of Care>Applicable standard of care>Bailment duties
What duty does a bailee owe to a bailor when the bailment is for the mutual benefit of bailor and bailee?
The bailee owes a duty of ordinary due care.
Torts>Duty of Care>Applicable standard of care>Bailment duties
What care is owed if a bailment is mutually beneficial?
If the bailment is for the mutual benefit of the bailor and bailee, the bailee must exercise ordinary due care.
Torts>Duty>What is Applicable Standard of Care>Bailment Duties> Mutual Benefit Bailments
What are the modern trends in classifying what type of care is owed by a bailee?
Today the trend is away from such classifications and toward a rule that considers whether the bailee exercised ordinary care under all the circumstances. These circumstances include, e.g., value of the goods, type of bailment, custom of a trade, etc.
Torts>Duty>What is Applicable Standard of Care>Bailment Duties> Modern Trend
In what situations are duties owed by the Bailor?
A bailor owes certain duties when they are the sole party to benefit of bailee bailments and in bailments for hire.
Torts>Duty>What is Applicable Standard of Care>Duties Owed by Bailor
What is the duty owed if the bailamant is
for the sole benefit of the bailee?
The bailor need only inform the bailee of known dangerous
defects in the chattel. There is no known duty with regard to unknown defects
Bailmant duties>duties owed by bailor>sole benefit
of bailee bailments
What is the duty owed if the bailmant is
for hire?
The bailor owes a duty to inform the bailee of defects known to
him, or of which he would have known by the exercise of
reasonable diligence.
Baulmant duties>duties owed by bailor>bailments for
hire
What is the standard of care in emergency situations?
The existence of an emergency, presenting little time for
reflection, may be considered as among the circumstances under which the defendant acted; i.e. he must act as the reasonable person would under the same emergency. The emergency may not be considered, however, if it is of the defendant’s own making.
Bailmant duties>what is applicable standard of care>standard of care in emergency situations
Special duty rules that apply to owners/occupiers of land
Duty problems are resolved by application of special rules that have been developed imposing duties on indivudials because of their relationship to the property. In some cases, the duty of the owner or occupier depends on whether the injury occurred on or off the premises; in others it depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, livensee, or invitee.
C. Standard of Care Owed by Owners and/or Occupiers of Land
What duty does the possessor of land owe to those off the premises regarding the natural conditions of the land?
The general rule is that a landownder owes no duty to protect one outside the premises from natural conditions on the land.
Example: One is not liable for bugs that live in trees on one’s land but that “visit” the neighbors from time to time.
C. Standard of Care Owed by Owners and/or Occupiers of Land 1. Duty of Possessor to Those Off the Premises a. Natural Conditions
What duty does the possessor of land owe to those off the premises regarding artificial conditions on the land?
As a general rule, there is no duty owing for artificial conditions. However, two major exceptions exist: unreasonably dangerous conditions and the duty to protect passersby.
C. Standard of Care Owed by Owners and/or Occupiers of Land 1. Duty of Possessor to Thsoe Off the Premises b. Artificial Conditions
Erecting a barricade to keep people from falling into an excavation at the edge of the property is an example of which artificial conditions exception to the general rule of owing no duty?
Duty to Protect Passersby: A landowner also has a duty to take due precautions to protect persons passing by from dangerous conditions.
Torts>Duty>To whom owed>to those off the premises
Negligently permitting water to drain off a roof and form ice on the sidewalk is an example of which artificial conditions exception to the general rule of owing no duty?
Unreasonably Dangerous Conditions: A landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land.
Torts>Duty>To whom owed>to those off the premises
What level of duty is required to control the conduct of others on your property?
An owner of land has a duty to exercise reasonable care with respect to his
own activities on the land and to control the conduct of others on his property
so as to avoid unreasonable risk of harm to others outside the property
Torts>Duty>To whom owed>to those off the premises
The nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on what?
The legal status of the plaintiff with regard to the property. Whether the plantiff was one of the following:
- trespasser,
- licensee, or
- invitee.
Torts>Duty>To whom owed>to those on the premises
What is the definition of a trespasser?
One who comes onto the land without permission or privilege
Torts>Duty>to whom owned>trespasser
What duty does a landowner owe to an undiscovered trespasser?
no duty - he has no duty to inspect in order to ascertain whether persons are coming onto his property
Torts>Duty>to whom owned>undiscovered trespasser
