VII. Torts: Negligence Basics: Duty of Care

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rubidoux
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136196
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VII. Torts: Negligence Basics: Duty of Care
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2012-02-29 14:03:28
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negligence
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  1. NEGLIGENCE: PRIMA FACIE CASE
    1. the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury;

    2. breach of that duty by defendant;

    3. that the breach of duty was the actual and proximate cause of the plaintiff's injury; and

    4. damage to the plaintiff's person or property.
  2. GENERAL DUTY OF CARE
    When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person and will take precautions against creating unreasonable risk of injury to other persons.

    No duty is imposed on a person to take precautions against events that cannot reasonably be foreseen.

    A duty of care is owed only to foreseeable plaintiffs.
  3. UNFORESEEABLE PLAINTIFF PROBLEM
    The unforeseeable plaintiff problem arises when a defendant breaches a duty to one P1 and also causes injury to P2 to whom a foreseeable risk of injury might or might not have been created a the time of the original negligent act.

    majority view: P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, ie, that she was located in the foreseeable zone of danger.

    minority view: defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach to someone.
  4. DUTY OWED TO RESCUERS?
    • A rescuer is a foreseeable plaintiff as long as the rescue is not wanton; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue.
    • ---------------------
    • Firefighters, police, etc, are exempt due to assumption of risk.
  5. BASIC STANDARD OF CARE:
    CHARACTERISTICS OF THE REASONABLE PERSON
    A reasonable, ordinary, person has the following characteristics:

    -- same physical characteristics as defendant;

    -- average mental ability, ie, low IQ and insanity are no excuse

    -- same knowledge as average member of community, but if defendant has superior knowledge then he must use it
  6. STANDARD OF CARE: PERSONS WITH SPECIAL SKILLS
    A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

    A doctor must give patient enough info to make informed consent and if an undisclosed risk is serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached his duty.

    Common carriers and innkeepers are required to exercise a very high degree of care toward their passengers.
  7. STANDARD OF CARE: CHILDREN
    A child is required to conform to the standard of care of a child of like age, education, intelligence, and experience.

    If child is perfoming an adult activity, he will be required to conform to the same standard of care as an adult in such an activity.
  8. STANDARD OF CARE FOR DRIVERS
    The duty owed by a driver to a rider is one of ordinary care.

    In state's with a guest statute, the driver's only duty to a non-paying rider is to refrain from gross or wanton and willful misconduct. Passengers, who contribute toward the expense of the ride, are owed a duty of ordinary care.
  9. BAILMENT DUTIES
    Duties owed by bailor:

    -- for gratuitous bailments, the bailor need only inform the bailee of known dangerous defects in the chattel.

    -- for bailments for hire, the bailor owes a duty to inform the bailee of defects known to him, or which he would have known by the exercise of reasonable diligence.

    Duties owed by bailee:

    -- where bailee is uncompensated, only slight diligence is required, and liability will exist only where there is gross negligence.

    -- where bailment is for sole benefit of bailee, great diligence is required, and liability will result from slight negligence.

    -- where benefit is mutual, ordinary due care is required.
  10. DUTY OF POSSESSOR TO THOSE OFF THE PREMISES
    General rule is NO DUTY to those off of land from natural conditions on the land.

    -- Exception exists for decaying trees next to sidewalks/roads.

    Also no duty for artificial conditions except:

    -- A landowner is liable for damage caused by unreasonably dangerous conditions or structures abutting adjacent land.

    -- And a duty to take due precautions to protect persons passing by from dangerous conditions.
  11. DUTY OWED TO AN UNDISCOVERED TRESPASSER
    No duty owed to an undiscovered trespasser and no duty to inspect in order to ascertain whether there are trespassers.
  12. DUTY OWED TO DISCOVERED TRESPASSER
    If landowner or occupier knows of a trespasser, there is 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. No duty is owed for natural conditions or less dangerous artificial conditions.

    A trespasser is discoverd if the the owner notices them, but also if the owner/occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property.

    Anticipated trespassers are treated the same as discovered trespassers, ie, someone who continually crosses over the land.
  13. ATTRACTIVE NUISANCE DOCTRINE
    Landowners have the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

    Plaintiff must show the following:

    1. there is a dangerous condition on the land of which owner should be aware;

    2. owner knows or should know that young persons frequent the vicinity of this dangerous condition;

    3. the condition is likely to cause injury because of the child's inability to appreciate the risk; and

    4. the expense of remedying the situation is slight compared with the magnitude of the risk.

    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 owner.
  14. DUTY OF EASEMENT AND LICENSE HOLDERS TO TRESPASSERS
    Easement and license holders have a duty of reasonable care to trespassers even if they are undiscovered.
  15. LICENSEE: DEFINITION
    A licensee is one who enters on the land with the owner's permission, express or implied, for her own purpose or business rather than for the landowner's benefit.

    A social guest is a licensee.

    Under the firefighter's rule, police and firefighters are generally treated like licensees based on public policy/assuption of risk grounds.
  16. DUTY OWED TO LICENSEE
    Owner/occupier has a duty to warn the licensee of a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.

    Also has a duty to exercise reasonable care in the conduct of active operations for the protection of the licensee whom he knows to be on the property.

    No duty to a licensee to inspect for defects nor to repair known defects.
  17. INVITEE: DEFINED
    An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. There are two classes of invitees:

    -- those who enter as members of the public for a purpose for which the land is held open to the public; and

    -- those who enter for a purpose connected with the business or other interests of the landowner.

    Status of invitee is lost if scope of invitation is exceeded.
  18. DUTY OWED TO INVITEE
    The 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 general duty includes the duties owed to licensees:

    -- to warn of 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, to make them safe.
    • -----------------------------
    • If the danger is obvious, a duty to warn usually does not exist.
  19. USERS OF RECREATIONAL LAND
    If an owner/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 unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

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