Torts 1--Duty

Question 1

What four elements must be met to establish a prima facie case for negligence?

Answer 1

1. 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.
2. Breach - The defendant must have breached the duty.
3. Promixate Cause - The breach of duty must be the actual and proximate cause of the plaintiff’s injury.
4. Damage - The plaintiff’s person or property must have been damaged.

Torts>Prima Facie Case

Question 2

What is the duty of care?

Answer 2

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

Question 3

Generally, to whom is the duty of care owed?

Answer 3

A duty of care is owed only to foreseeable plaintiffs.

Torts>General Duty of Care>To Whom Owed

Question 4

Generally, to whom the duty of care is owed?

Answer 4

A duty of care is owed only to foreseeable plaintiffs.

Torts>Duty>To whom owed>foreseeable plaintiffs

Question 5

What is the unforeseeable plaintiff problem?

Answer 5

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

Question 6

What are the 2 most common views used to determine a defendant’s liability to a second plaintiff?

Which is the prevailing view?

Answer 6

“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

”

Question 7

What is Andrews’ view on establishing the existence of a duty of care to the second plaintiff?

Answer 7

“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

”

Question 8

According to Cardozo [and most courts], when does a defendant’s liability allow a second plaintiff to recover?

[THINK: zone of danger]

Answer 8

“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

”

Question 9

What duty of care is owed to rescuers?

Answer 9

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

Question 10

Are prenatal injuries actionable, and if so, what duty of care is owed to a fetus?

Answer 10

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

Question 11

“Wrongful Life” Action Not Recognized

Answer 11

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

Question 12

Compare “Wrongful Birth” and “Wrongful Pregnancy”

Answer 12

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.

Question 13

Intended Beneficiaries of Economic Transactions

Answer 13

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”.

Question 14

What are the four main standards of care that can be used in an analysis of duty?

Answer 14

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

Question 15

How is the basic standard of care involving “The Reasonable Person” defined?

Answer 15

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

Question 16

Under the basic standard of care analysis, what sort of physical characteristics are attributed to the Defendant?

Answer 16

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

Question 17

Unlike the rule as to physical characteristics, _____ ______ handicaps are NOT considered.

Answer 17

individual mental

average mental ability

Question 18

Defendant is deemed to have knowledge of things __________.

Answer 18

known by the average member of the community (e.g. that fire is hot)

same knowledge as avg member of the community

Question 19

What are some persons held to a standard of conduct different from that of the ordinary person?

Answer 19

professionals, children, common carriers and inkeepers

particular standards of conduct

Question 20

Who is a “professional” and what is their standard of conduct?

Answer 20

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

Question 21

What is the duty to disclose risks of treatment?

Answer 21

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

Question 22

How is the standard of care for children viewed by courts?

Answer 22

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

Question 23

What standard of care is owed by the driver of an automobile to a rider?

Answer 23

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

Question 24

What duty is owed by the driver of an automobile to a nonpaying rider under guest statutes?

Answer 24

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

Question 25

What are bailment duties?

Answer 25

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

Question 26

What duty does a bailee owe to a bailor when the bailment is for the sole benefit of the bailor?

Answer 26

The bailee will be held liable only for gross negligence. Torts\>Duty of Care\>Applicable standard of care\>Bailment duties

Question 27

What duty does a bailee owe to a bailor when the bailment is for the sole benefit of the bailee?

Answer 27

The bailee will be held liable for slight (or worse) negligence. Torts\>Duty of Care\>Applicable standard of care\>Bailment duties

Question 28

What duty does a bailee owe to a bailor when the bailment is for the mutual benefit of bailor and bailee?

Answer 28

The bailee owes a duty of ordinary due care. Torts\>Duty of Care\>Applicable standard of care\>Bailment duties

Question 29

What care is owed if a bailment is mutually beneficial?

Answer 29

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

Question 30

What are the modern trends in classifying what type of care is owed by a bailee?

Answer 30

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

Question 31

In what situations are duties owed by the Bailor?

Answer 31

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

Question 32

What is the duty owed if the bailamant is for the sole benefit of the bailee?

Answer 32

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

Question 33

What is the duty owed if the bailmant is for hire?

Answer 33

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

Question 34

What is the standard of care in emergency situations?

Answer 34

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

Question 35

Special duty rules that apply to owners/occupiers of land

Answer 35

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

Question 36

What duty does the possessor of land owe to those off the premises regarding the natural conditions of the land?

Answer 36

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

Question 37

What duty does the possessor of land owe to those off the premises regarding artificial conditions on the land?

Answer 37

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

Question 38

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?

Answer 38

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

Question 39

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?

Answer 39

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

Question 40

What level of duty is required to control the conduct of others on your property?

Answer 40

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

Question 41

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?

Answer 41

The legal status of the plaintiff with regard to the property. Whether the plantiff was one of the following: 1. trespasser, 2. licensee, or 3. invitee. Torts\>Duty\>To whom owed\>to those on the premises

Question 42

What is the definition of a trespasser?

Answer 42

One who comes onto the land without permission or privilege Torts\>Duty\>to whom owned\>trespasser

Question 43

What duty does a landowner owe to an undiscovered trespasser?

Answer 43

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

Question 44

What duty does a landowner owe to a discovered trespasser?

Answer 44

once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe artificial conditions known to the landowner that involve a risk of death or bodily harm that the discovered trespasser is unlikely to discover Torts\>Duty\>to whom owned\>discovered trespasser

Question 45

When is there no duty owed from a landowner to a discovered trespasser?

Answer 45

landowner owes no duty for natural conditions and less dangerous artificial conditions Torts\>Duty\>to whom owned\>discovered trespasser

Question 46

When is a trespasser "discovered"?

Answer 46

when she is actually noticed on the property by the owner or occupier OR if owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property Torts\>Duty\>to whom owned\>discovered trespasser

Question 47

What is definition of a trespasser?

Answer 47

A trespasser is one who comes onto the land without permission or privilege. Torts \> Duty \> Duty Owed to Trespasser

Question 48

What is the duty of a landowner who discovers the presence of a trespasser?

Answer 48

Once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. Torts \> Duty \> Duty Owed to Trespasser

Question 49

What degree of care does a landowner have to give to a discovered trespasser?

Answer 49

Ordinary care Torts \> Duty \> Duty Owed to Trespasser

Question 50

Under ordinary care for a discovered trespasser, what does the landowner have to do?

Answer 50

To warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm Torts \> Duty \> Duty Owed to Trespasser

Question 51

What duty does the owner or occupier have in regards to active operations on their property

Answer 51

The owner or occupier also has a duty to exercise reasonable care in the exercise of “active operations” on the property. Torts \> Duty \> Duty Owed to Trespasser

Question 52

When is a Trespasser “Discovered”

Answer 52

A trespasser is discovered when they are actually noticed on the property by the owner or occupier. Also, a trespasser is discovered if the owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property. Torts \> Duty \> Duty Owed to Trespasser

Question 53

How do the majority of states treat anticipated trespassers?

Answer 53

The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner. Torts \> Duty \> Duty Owed to Anticipated Trespasser

Question 54

When is a Trespasser "Anticipated"?

Answer 54

An "anticipated trespasser" situation arises where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. NOTE: If the owner posts a "no trespassing" sign, this might serve to convert these "anticipated trespassers" into 'undiscovered trespassers. Torts\>Duty\>Standard of Care owed by Owners and/or Occupiers of Land\>Duties of possessor to those on the premises

Question 55

What is the "Attractive Nuisance" Doctrine?

Answer 55

Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk to harm to children caused by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the plaintiff must show the following: i) There is a dangerous condition present on the land of which the owner is or should be aware; ii) The owner knows or should know that young persons frequent the vicinity of this dangerous condition; iii) The condition is likely to cause injury, i.e., is dangerous, because of the child's inability to appreciate the risk; and iv) The expense of remedying the situation is slight compared with the magnitude of the risk. Torts\>Duty\>Standard of Care owed by Owners and/or Occupiers of Land\>Duties of possessor to those on the premises

Question 56

What is a "Dangerous Condition"?

Answer 56

A "dangerous condition" exists where something on the land is likely to cause injury to children because of their inability to appreciate the risk. This usually is an artificial condition, but in some circumstances, a natural condition might suffice. Torts\>Duty\>Standard of Care owed by Owners and/or Occupiers of Land\>Duties of possessor to those on the premises

Question 57

Where is the "Attractive Nuisance" Doctrine applied?

Answer 57

The attractive nuisance doctrine has been applied to abandoned automobiles, lumber piles, sand bins, and elevators. Bodies of water are generally not dangerous conditions because the dangers are viewed as obvious and well-known. If, however, a body of water contains elements of unusual danger to children, it may be characterized as a dangerous condition, e.g.logs or plants floating in the water, or a thick scum that appears to be a path on the water Torts\>Attractive Nuisance Dotrince\>Where Applied (pg 190)

Question 58

Foreseeability of harm is true basis of liability

Answer 58

Under the traditional "attrractive nuisance" doctrine, it was necessary for the child/plaintiff to establish that she was lured onto the property by the attractive nuisance/dangerous condition. This no longer is the case. Most jurisdictions have substantially revised their attractive nuisance doctrines to bring them within general negligence concepts. Foreseeability of harm to a child is the true basis of liability and the element of attraction is important only insofar as it indicates that the presence of children should have been anticipated by the landowner. Torts\>Attractive Nuisance Dotrince\>Forseeability of Harm

Question 59

Duty of Easement and License Holders to Trespassers

Answer 59

While employees and independent contractors acting acting on behalf of the landowner, perrsons with an easement or license to use the land do not; they must exercise reasonable care to protect the tresspasser. Ex. Power Company obtains an easement from Leonard to run high-tension wires across Leonard to run high-tension wires across Leonard's land. Because of Power Company's negligent failure to maintain the wires, one of them falls and injures Plaintiff, an undiscovered trespasser Leonard's land. Power Company is liable to Plaintiff. Torts\>Attractive Nuisance Doctrine\>Duty of Easement & License Holders to Tresspassers

Question 60

Who is a Licensee?

Answer 60

A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit. Torts\>Definition\>Licensee

Question 61

What duty is owed to a Licensee?

Answer 61

The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. Torts\>Duty\>To Licensee

Question 62

Does the landowner have a duty to inspect when a licensee enters the premises?

Answer 62

The owner or occupier has no duty to a licensee to inspect for defects nor to repair known defects. Torts\>Duty\>What is applicable standard of care? \> Standard of Care Owed by Owners and/or Occupiers of Land \> Duties of Possessor to Those on the Premises \> Duty Owed to a Licensee \> Duty Owed \> No Duty to Inspect

Question 63

What is the duty of care for a landowner when active operations are on the premises?

Answer 63

The owner or occupier also has a duty to exercise reasonable care in the conduct of "active operations" for the protection of the licensee whom he knows to he on the premises. Torts\>Duty\>What is applicable standard of care? \> Standard of Care Owed by Owners and/or Occupiers of Land \> Duties of Possessor to Those on the Premises \> Duty Owed to a Licensee \> Duty Owed \> Duty of Care of Active Operations

Question 64

Is a social guest a licensee or invitee?

Answer 64

A social guest is a licensee. Performance of minor services for the hose does not make the guest an invitee. Torts\>Duty\>What is applicable standard of care? \> Standard of Care Owed by Owners and/or Occupiers of Land \> Duties of Possessor to Those on the Premises \> Duty Owed to a Licensee \> Social Guests are Licensees

Question 65

What duty do landowners owe to those invited on their land?

Answer 65

Duty to warn or make known dangerous conditions licensee might be unaware of. Torts\>Duty\>To whom owed\>foreseeable plaintiffs

Question 66

What is a licensee?

Answer 66

One who enters on land with the landowner's permission, express or implied, for her own purpose. Torts\>Duty\>Duties of Possessor to Those on the Premises\>foreseeable plaintiffs

Question 67

Who is a priviledged entrant?

Answer 67

An entrant: (a) serving some purpose of the possessor; (b) who comes under normal circumstances during working hours and; (c) under the firefighter's rule Torts\>Duty\>To whom owed\>foreseeable plaintiffs

Question 68

What is the airspeed velocity of an unladen swallow?

Answer 68

It depends on whether the swallow is a European swallow or an African swalllow. Torts\>Duty\>To whom owed\>foreseeable plaintiffs

Question 69

When does a person lose their status as an invitee?

Answer 69

A person loses their status as invitee if they exceed the scope of the invitation- if they go into a portion of the premises where their invitation cannot be reasonably said to extend. Torts\>Duty\>What applicable standard of care\>Standard of Care Owed by Owners and or occupiers of Land\>Duties of Possessor to Those on the Premises\>Duty owed to invitee\>Scope of invitation

Question 70

What duty does a landowner owe to an invitee?

Answer 70

Landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This includes duties owed to licensees (to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) PLUS a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. Torts\>Duty\>What applicable standard of care\>Standard of Care Owed by Owners and or occupiers of Land\>Duties of Possessor to Those on the Premises\>Duty owed to invitee\>Duty owed

Question 71

When is the requirement to "make safe" of dangerous conditions satisfied?

Answer 71

The requirement to "make safe" dangerous conditions is satisfied if a reasonable warning has been given. Torts\>Duty\>What applicable standard of care\>Standard of Care Owed by Owners and or occupiers of Land\>Duties of Possessor to Those on the Premises\>Duty owed to invitee\>Duty owed

Question 72

Does a landowner owe an invitee a general duty to warn when the danger is obvious?

Answer 72

No. A duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it. “Obviousness” is determined by all of the surrounding circumstances. Example: A banana peel visible on the floor of a supermarket might not be considered obvious if a shopper’s attention would likely be diverted by shelf displays. Torts\>Negligence\>The Duty of Care\>What Is Applicable Standard of Care?\>Standard of Care Owed by Owners and/or Occupiers of Land\>Duties of Possessor to Those on the Premises\>Duty Owed to an Invitee\> Duty Owed\>Obviousness of Danger

Question 73

What standard is applied to users of recreational land?

Answer 73

If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user. The exception is if the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity. Example: The owner of a large tract of undeveloped rural land who permits the general public to use a pond on the land for swimming and fishing would be covered by this type of statute, whereas the owner of a swimming pool who permits his house guests to swim whenever they visit would not be covered by the statute (he would owe his guests the usual duties owed to licensees). Torts\>Negligence\>The Duty of Care\>What Is Applicable Standard of Care?\>Standard of Care Owed by Owners and/or Occupiers of Land\>Duties of Possessor to Those on the Premises\>Users of Recreational Land

Question 74

What duty does a lessor of realty have?

Answer 74

A general duty. Torts\>Negligence\>The Duty of Care\>What Is Applicable Standard of Care?\>Standard of Care Owed by Owners and/or Occupiers of Land\>Duties of a Lessor of Realty

Question 75

What is the general duty of a lessor of realty?

Answer 75

When the owner leases the entire premises to another, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. Torts\>Duty\>Standard of Care Owed by Owners/Occupiers of Land

Question 76

What is the general duty of a lessor of realty if they only lease a portion of the property?

Answer 76

Where the owner leases portions of the premises to tenants, the owner continues to be subject to liability as a landowner for unreasonably dangerous conditions in those portions of the premises such as corridors, entry lobby, elevators, etc., used in common by all tenants, or by third persons, and over which the owner has retained occupation and control. Torts\>Duty\>Standard of Care Owed by Owners/Occupiers of Land

Question 77

What is the first exception to the general duty a lessor has on their realty property?

Answer 77

The lessor is obligated to give warning to the lessee of existing defects in the premises of which the lessor is aware, or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection. Torts\>Duty\>Standard of Care Owed by Owners/Occupiers of Land

Question 78

If the lessor has convenanted to make repairs and reserves the right to enter the leased premises for the purpose of inspecting for defects and repairing them, he is subject to liability for unreasonably dangerous conditions.

Answer 78

When is the lessor liable if he has convenanted with the lessee to make repairs on the premises?

Question 79

If the lessor, though under no obligation to make repairs, does so, he is subject to liability if he does so negligently, failing to cure the defect; it is not necessary that his negligent repairs make the condition worse.

Answer 79

When is the lessor liable if he voluntarily makes repairs to the premises?

Question 80

If the lessor leases the premises knowing that the lessee intends to admit the public, the lessor is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession where the nature of the defect and length and nature of the lease indicate that the tenant will not repair (e.g., lessor rents convention hall to tenant for three day period). This liability continues until the defect is actually remedied. A mere warning to the lessee concerning the defect is not sufficient.

Answer 80

When is the lessor liable when the lessor knows the lessee intends to admit the public?

Question 81

Does potential liability of the lessor for dangerous conditions on the premises relieve the tenant of liability for injuries to third persons?

Answer 81

No, this does not relieve the tenant, as occupier of the land, of liability for injuries to third persons from dangerous conditions within the tenant's control. Tenant Remains Liable to Invitees and Licensees

Question 82

At the time of transfer of possession to the Vendee, what duty does the Vendor have?

Answer 82

The Vendor has the duty to disclose concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and is not likely to discover on reasonable inspection. The vendor's responsibility continues until the vendee should have, in the exercise of reasonable care in inspection and maintenance, discovered and remedied the defect. Duties of Vendor Realty

Question 83

What must the plaintiff show in proving the availablity of the statutory standard of care?

Answer 83

a. Plaintiff is in a protected class; and b. The statute was created to prevent the type of harm Plaintiff suffered Torts\>Negligence\>Duty of Care\>Statutory Standards of Care

Question 84

When are statutory standards applicable when a plaintff is within a protected class?

Answer 84

``` The plaintiff must show that she is in the class intended to be protected by the statute. ``` Torts\>Negligence\>Duty of Care\>Statutory Standards of Care

Question 85

What particular harm must be avoided when a statutory standard is applicable?

Answer 85

The plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered. Torts\>Negligence\>Duty of Care\>Statutory Standards of Care

Question 86

When is the violation of some statutes excused?

Answer 86

a) Where compliance would cause more danger than violation - e.g. Defendant drives onto wrong side of the road to avoid hitting children darting in front b) where compliance would be beyond defendant's control - e.g. Blind pedestrian crosses against light Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\>Excuse for violation

Question 87

What is the effect of establishing a violation of a statute in majority jurisdictions?

Answer 87

Most courts still adhere to the rule that violation of a statute is "negligence per se" negligence per se means that plaintiff will have a conclusive presumption of (1) duty AND (2) breach of duty plaintiff must still establish causation and damages to complete the prima facie case for negligence Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\>Effect of establishing violation of statute

Question 88

What is the effect of establishing a violation of a statute in minority jurisdictions?

Answer 88

These courts hold that either: (1) a rebuttable presumption as to duty and breach thereof arises, or (2) the statutory violation is only prima facie evidence of negligence Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\>Effect of establishing violation of statute

Question 89

What is the effect of compliance with a statute?

Answer 89

Compliance with a statute does not necessarily establish due care. Negligence can still be found if there was an unusual circumstance OR increased danger beyond the minimum that the statute was designed to meet. In these cases, it might be found that there is negligence in not doing more. Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\>Effect of compliance with statute

Question 90

What is the duty regarding negligent infliction of emotional distress?

Answer 90

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. Plaintiff must satisfy two requirements to prevail: (1) plaintiff was within "zone of danger" AND (2) plaintiff suffered physical symptoms from the distress Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\> Violation of a civil remedy statute

Question 91

What does it mean for the plaintiff to be within the "zone of danger?"

Answer 91

The plaintiff usually must show that her distress has been caused by a threat of physical impact i.e. that she was within the "zone of danger" Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\> Violation of a civil remedy statute

Question 92

What does it mean for the plaintiff to suffer physical symptoms from the distress?

Answer 92

In order for plaintiff to recover damages, most courts usually require that the defendant's conduct cause the plaintiff emotional distress that manifests itself in physical symptoms. A growing minority of states have dropped the physical symptom requirement. Torts\>Duty of care\> What is applicable standard of care\>Statutory standards of care\> Violation of a civil remedy statute

Question 93

When is the duty to avoid negligent infliction of emotional distress breached?

Answer 93

Duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) plaintiff must be within the "zone of danger", and (2) plaintiff must suffer physical symptoms from the distress. Torts\>Duty of Care\>Applicable Standard of Care\>Negligent Infliction of Emotional Distress

Question 94

What is the zone of danger for negligent infliction of emotional distress?

Answer 94

For a plaintiff to recover for negligent infliction of emotional distress, the plaintiff must be able to show that her distress was caused by a threat of physical impact; i.e., she was within the "zone of danger." Example: A driver negligently ran a red light and skidded to a stop inches away from a pedestrian, who was properly crossing the street in a crosswalk. The pedestrian's shock from nearly being run over caused her to suffer a heart attack. The pedestrian can recover for negligent infliction of emotional distress because she was in the zone of danger? Torts\>Duty of Care\>Applicable Standard of Care\>Negligent Infliction of Emotional Distress\>Plaintiff Must Be Within "Zone of Danger"

Question 95

What proof is necessary for a plaintiff to recover damages for negligent infliction of emotional distress?

Answer 95

For the plaintiff to recover damages for negligent infliction of emotional distress, most courts require that the defendant's conduct caused the plaintiff emotional distress that manifests itself in physical symptoms (such as a nervous breakdown, miscarriage, heart attack, or severe shock to the nervous system resulting in physical symptoms). A growing minority of states have dropped the requirement of physical symptoms. Torts\>Duty of Care\>Applicable Standard of Care\>Negligent Infliction of Emotional Distress\>Plaintiff Must Suffer Physical Symptoms

Question 96

When are the requirements for recovering damages in negligent infliction of emotional distress claims not always necessary?

Answer 96

A bystander may recover damages for negligent infliction of emotional distress if they were not in the zone of danger but witnessed injury occurring to someone to whom they are closely related. A plaintiff may recover damages for negligent infliction of emotional distress even without physical symptoms arising from the distress if there is a special relationship between the plaintiff and defendant that affected the duty the defendant had to them. A plaintiff may be able to recover damages without proving either of the two elements for this tort if there is a special situation in which the defendant's negligence creates a great likelihood of emotional distress. Torts\>Duty of Care\>Applicable Standard of Care\>Negligent Infliction of Emotional Distress\>Special Circumstances

Question 97

May a bystander, outside the "zone of danger," who witnesses defendant's commission of IIED offense recover damages?

Answer 97

Yes. A majority of states allow recovery if: (1) the plaintiff and the person injured by the defendant are closely related, (2) the plaintiff was present at the scene of injury, and (3) the plaintiff personally observed or perceived the event. \*\*\*In this situation, most of the states drop the requirement of physical symptoms.

Question 98

Why are Defendants with a special relationship to Plaintiff, resulting in a heightened duty, held liable for IIED?

Answer 98

IF Plaintiff and Defendant have a relationship in which a special duty is present, and the Defendant negligently acts within the context of that relationship, thereby injuring Plaintiff, THEN those actions create a foreseeable risk of of severe emotional distress. \*\*\*In this situation, most of the states also drop the requirement of physical symptoms.

Question 99

What is the general rule for the duty to act?

Answer 99

As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. This general rule is subject to exceptions. Torts\>Duty\>Applicable Standard of Care\>Affirmative Duties to Act

Question 100

When does the duty to act attach?

Answer 100

One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like an ordinary, prudent, reason- able person and continue the assistance. Torts\>Duty\>Applicable Standard of Care\>Affirmative Duties to Act

Question 101

What are good Samaritan statutes

Answer 101

Good Samaritan statutes exempt licensed individuals who voluntarily render emergency treatment from ordinary negligence but not gross negligence Torts\>Duty\>What is Applicable Standard of Care\>affirmative duties to act\>assumption of duty to act by acting

Question 102

What type of conduct proposes a duty of reasonable care to assist?

Answer 102

Any conduct that places another in a position of peril creates a duty to use reasonable care to aid or assist the person in peril. Torts\>Duty\>What is Applicable Standard of Care\>affirmative duties to act\>peril due to defendant's conduct

Question 103

When may a person become liable to another person if the plaintiff is in peril?

Answer 103

A defendant having a special relationship to the plaintiff (parent-child; employer-employee) may be liable for failure to act if the plaintiff is in peril Torts\>Duty\>What is Applicable Standard of Care\>affirmative duties to act\>special relationship between parties

Question 104

What is the duty of common carriers?

Answer 104

Common carriers are under a duty to use reasonable care to aid or assist passengers. Torts\>Duty of Care\>Applicable Standard of Care\>Affirmative Duties to Act\>Special Relationship Between Parties\>Duty of Common Carriers

Question 105

What is the duty of places of public accommodation?

Answer 105

Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons. Torts\>Duty of Care\>Applicable Standard of Care\>Affirmative Duties to Act\>Special Relationship Between Parties\>Duty of Places of Public Accommodation

Question 106

What is the role of a contract in creating duty?

Answer 106

Nonfeasance—No Duty, In general, for mere nonfeasance, there is no tort duty of care, regardless of whether the defendant promises to undertake action gratuitously or for consid- eration. Liability for breach of contract extends only to parties in privity. In general, for mere nonfeasance, there is no tort duty of care, regardless of whether the defendant promises to undertake action gratuitously or for consid- eration. Liability for breach of contract extends only to parties in privity. Misfeasance—Due Care Required, for misfeasance, failure to perform with due care contractual obligations owed to one may give rise to violation of a legal duty. Torts\>Duty of Care\>Applicable Standard of Care\>Affirmative Duties to Act\>Role of Contract in Creating Duty

Question 107

For mere nonfeasance, is there a tort duty of care, regardless of whether the defendant promises to undertake action gratuitously or for consid- eration.

Answer 107

No. Nonfeasance—No Duty

Question 108

For misfeasance, does failure to perform with due care contractual obligations owed to one give rise to violation of a legal duty?

Answer 108

Yes. Misfeasance—Due Care Required

Question 109

Is there a duty to prevent a third person from injuring another? Are there any situations where such a duty might be imposed?

Answer 109

Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the actual ability and authority to control the third person’s action. Thus, for example, bailors may be liable for the acts of their bailees, parents may be liable for the acts of their children, employers may be liable for the acts of their employees, etc. It is generally required for imposition of such a duty that the defendant knows or should know that the third person is likely to commit such acts as would require the exercise of control by the defendant. Duty to Prevent Harm from Third Persons