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APPLICABILITY OF CRIMINAL STATUTE
If plaintiff can prove that a criminal statute applies, the statute's specific duty will replace the more general common law duty of care.
Plaintiff must show the following:
-- plaintiff is within the protected class;
-- statute was design to prevent the particular harm that plaintiff suffered; and that
-- statute is clear as to what standard is expected, where and when it is expected, and of whom it is expected.
EFFECT OF ESTABLISHING VIOLATION OF STATUTE
Violation of a statute is usually considered negligence per se so that there is a conclusive presumption of duty and breach of duty. (Plaintiff still must prove causation and damages to prove prima facie case.)
DUTY RE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The duty to avoid negligent infliction of emotional distress is breached when defendant creates a foreseeable risk of physical injury to plaintiff
, either by -- causing a threat of physical impact that leads to emotional distress
or -- directly causing severe emotional distress that by itself is likely to result in physical symptoms
- For second prong to apply, duty arises from defendant's relationship to plaintiff (ie, doctor patient) such that negligence has a great potential to inflict emotional distress.
- Plaintiff must prove:
-- that she was within the zone of danger
(if threat is physical); and
-- plaintiff suffer's physical symptoms
EMOTIONAL DISTRESS DAMAGES AS PARASITIC ELEMENT OF ANOTHER TORT
If plaintiff is a victim of a tort that causes physical injury, plaintiff can tack on damages for emotional distress.
AFFIRMATIVE DUTY TO ACT: GENERAL RULE
No legal duty is imposed on any person to affirmatively act for the benefit of others -- unless there is an exception.
ASSUMPTION OF AFFIRMATIVE DUTY:
One who gratuitously acts for the benefit of another is then under the duty to act like an ordinary, prudent, reasonable person and continue the assistance.
-- Good samaritan statutes exempt licensed doctors, nurses, etc, who voluntarily and gratuitously render emergency treatment from liability; they are still liable for gross negligence.
ASSUMPTION OF AFFIRMATIVE DUTY:
PERIL DUE TO DEFENDANT'S CONDUCT
One whose conduct places another in a position of peril is under a duty to use reasonable care to aid or assist that person.
RELATIONSHIP BETWEEN PARTIES
-- Common carriers are under a duty to use reasonable care to aid or assist passengers.
-- Innkeepers, restauranteurs, 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.
AFFIRMATIVE DUTY: BY CONTRACT
Failure to perform with due care contractual obligations owed to one may give rise to violation of a legal duty.
Mere non-performance creates no such duty.
TO CONTROL THIRD PERSONS
It must appear that the defendant had the actual ability and authority to control the third person's action (ie, bailors/bailees, parents/children, employers/employees).
It is generally required for imposition of duty that defendant knows or should know that the third party is likely to commit such acts as would require the exercise of control by defendant.