X. Duty

Question 1

To whom is a Duty Owed

Answer 1

• all people who are foreseable victims of your failure to take precautions
• Plaintiffs who are foreseeable as a matter of law:
  
  • 1) rescurers–you create hazardous conditions, you should foresee a rescuer trying ot rescue and are liable for damages to them
  • 2) Viable Fetuses (CL & GA) fetus must be quick within the womb (detectable signs of life to mother (kicking))

Question 2

How much care must you exercise

Answer 2

• Must exercise the amount of care that would take by a reasonable prudent person–Poindexter Rule
  
  • D expected to use superior skill or expertise for P benefit
  • D physical abilities are attributed to the reasonbly prudent person (that is those withy our physical abilities e.g. blind person)
  • Reasonably prudent person standard is a fixed constant in negligence
    
    • don’t need extreme care, just the ordinary care in those circumstances

Question 3

Special Duty Stadnards: Children

Answer 3

• GA: can’t be negligent under 13 although can look to parents
• Majority: Child must exercise degree of care that a reasonble child of like age, intelligence and experience
• Adult activites–Child engaged in adult activity held to adult standard
  
  • but georgia under 13 rule still applies
• Traditional minority Rule: Rule of sevens
  
  • <7: incapable of negligence
  • 7-13–rebutabble presumption that they are incapable
  • >14 negligence capable
• Age Requirements generally do not apply to contributory negligence or assumption of risk

Question 4

Special Duty Standards: Professionals

Answer 4

• General standard: professional required to possess and exercise the knowledge and skill of an ordinary member of the profession in good standing
  
  • in Georgia, locality rule applies but only to facilities
  • GA: Special pleading requirements for professional negligence. Must attach to the compalint an affidavit of an expert specifying act of pfofessional malpracitce
• Med Mal: INfomred Consent
  
  • GA: does not recognized CL informed conent. Generally only regquired for diagnostic and surigcal proceudres
  • Emergency Medical care: gross negligence by clear and convicng evdience
• Legal Mal: P must prove causation (case within a case rule)
• WATHC OUT: tortious professional conduct other neglience such as professional batter, fraud or breach of fiduciary duties

Question 5

Special Duties: Owners and Occupiers of Land:

Answer 5

• must show that land possesors knowledge of hte hazard was superior to plaintffs
• static condition question, a land possesor can satisfy her legal obligation by repair or warning
• if a question involves child, attractive nuisance, use reasonble care
• open and obvious conditon, entrant will almost alwasy lose
• property made available to pbulic at no charge, liable only for wilful and wanton doucnt leading to injury
• Many states have abolished distinctions b/w licensees and invitees but not GA

Question 6

Undiscoverd Trespasser

Answer 6

• Artifical Conditions: No Duty
• Natural Conditions: No Duty
• Active Operations: No Duty

Question 7

Discovered or Anticipated Trespasser

Answer 7

• Artifical Conditions: Duty to warn of or make safe known conditions if nobvious and highly dangerous
• Natural Conditions: no duty
• Active Operations: duty of reasonable care

Question 8

Child (if prsence on land foreseeable/attractive nusiance)

Answer 8

• Artifical Conditions: Duty to warn of or make safe if foreseeable risk to child outweighs expense of eliminating danger
• Natural Conditions: No duty (unless also qualifeis as licensee or invitee)
• Active Operations: DUty of reasonble care

Question 9

LIcensee (including social Guest)

Answer 9

• Artifical Conditions: Duty to warn of or make safe know conditions if nonobvious and dangersou
• Natural Conditions: Duty to warn of or make safe know conditions if nonobvious and dangersou
• Active Operations: Duty of Reasonable Care

Question 10

Invitee (e.g. meber of public/business visitor)

Answer 10

• ARtificial Conditions: duty to make reasonable inspections to discover nonobious dnagerous conditions and warn of or make them safe
• Natural COnditions: Duty to amke reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe
• Active Operations: Duty of reasonable care

Question 11

Negligence Per Se

Answer 11

• Test: Negligence must of the class of person and the class of risk intended by the statute
• Exceptions:
  
  1. compliance w/ statute is more dangerous than violating the statute
  2. COmpliance is impossible under circumstances
• GA: no tort cause of action is implied from the violation of any civil or cimrinal statute. Liability must flow from 1) common law of torts OR 2) specific statute.
  
  • meaning statute for reporting child abuse isn’t enough to create tort liability unless it is part of common law or mentioned in statute

Question 12

Affirmative Duty to ACt Rule

Answer 12

• No duty to rescue
• Exceptions:
  
  • D put plaintiff in the peril they need rescue from
  • Relationships:
    
    • close family
    • inkeeper and common carrier
    • invitors
  • Duty to Control 3P: D must have actual ability and authority to control (e.g. mom and toddler)

Question 13

Negligent INfliction of Emotional Distress

Answer 13

• Generally no duty or liability

Except:

• 1) Zone of Danger–> plaintiff msut show that the negligence inflcited distress that has been caused by threat of impact, that distress is reasonable, and there are phycisl manificestations
  
  • GA says IMpact Rule–requires actual physical impact resulting in a physical injjry or other personal injury beyond emotional distress
• 2) Bystander Recovery: Outside of zone can recover if 1) P and person injury b d are closely related, 2) p was present at injury; and 3) p personally observed or percievd the event
  
  • GA says common force rule: if she is a parent who witnessed the death of a child and is also impacted by the common force