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by rmwick

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Negligence - 4 Elements
1) Duty - a duty on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury;

2) Breach - a breach of that duty by D;

3) Causation - the breach is the actual and proimate cause of P's injury; and

4) Damage
Duty of Care - Definition
A duty of care is owed to all foreseeable P's.

The extent of the duty is determined by the applicable standard of care.
Duty of Care - Foreseeable / Unforeseeable Plaintiffs (2 Views)
Defendant breaches duty to one P (P1) and also causes injury to another (possibly unforeseeable) P (P2).

Cardozo View (Majority): P2 can recover only if he can establish that a reasonable person would have foreseen an injury to him under the circumstances - He was located in the foreseeable "Zone of Danger"

Andrews View (Minority): P2 may establish the existence of a duty extending from D to him by a showing that D breached a duty owed to P1
Duty of Care - Specific Situations
1) Rescuers - rescuer is a foreseeable P where D negligently put himself or a third party in peril (danger invites rescue); but "Firefighters' Rule" may bar recovery

2) Prenatal injuries - (i) a duty of care is owed to a viable fetus, (ii) child may not recover for "wrongful life", (iii) parents may recover for "wrongful birth" or "wrongful pregnancy" (pain & suffering from labor + additional medical expenses) but not ordinary child-rearing costs

3) Intended beneficiaries of economic transaction - third party whose economic benefit a legal or business transaction was made
Standards of Care (4)
1) Reasonable Person (basic standard)
2) Particular standards of conduct
3) Owners and/or occupiers of land
4) Statutory standards of care
Reasonable Person Standard
1) Objective standard - D's conduct is measured against the reasonable, ordinary, prudent person
2) Mental deficiencies and inexperience are irrelevant
3) RP is considered to have same physical characteristics as D; but one is expected to know of one's physical handicaps and exercise the care of a person with such knowledge
4) D is deemed to have knowledge of things known by average member of community (shortcomings are irrelevant); but superior knowledge is considered
Particular Standards of Conduct - Professionals
Required to possess knowledge & skill of a member of the profession or occupation in good standing in similar communities

Duty to disclose risks of treatment - (i) doctor has duty to disclose risks of treatment to enable patient to give informed consent, and (ii) duty is breached if undisclosed risk was serious enough that a reasonable person in patient's position would have withheld consent on learning of the risk
Particular Standards of Conduct - Children
Subjective test - standard of a child of like age, education, intelligence, and experience.

Child under 4 usually w/o capacity to be negligent.

Children engaged in adult activities may be required to conform to an adult standard of care
Particular Standards of Care - Common Carriers and Innkeepers
Held to a very high degree of care - liable for even slight negligence.

P must be a passenger or guest for standard to apply.
Particular Standards of Care - Automobile Driver to Guest
Guest in automobile is owed a duty of ordinary care; but in guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
Particular Standards of Care - Bailment Duties
1) Duties owed by bailee depends on who benefits from bailment: (i) sole benefit of bailor - liable only for gross negligence, (ii) sole benefit of bailee - liable for even slight negligence, (iii) mutual benefit bailments - ordinary due care, (iv) modern trend - ordinary care under circumstances (value of goods, type of bailment, custom of trade, etc.).

2) Duties owed by bailor: (i) sole benefit of bailee - must only inform bailee of known dangerous defects, (ii) bailments for hire - must inform bailee of known defects or defects he would have known by exercise of reasonable diligence
Particular Standards of Care - Emergency Situations
D must act as a reasonable person would under same conditions.

Emergency is not considered if it is of D's own making.
Owners and/or Occupiers of Land - Duty of Possessor to Those Off Premises
1) No duty to protect one off premises from natural conditions on premises; except for decaying trees next to sidewalks or streets in urban areas

2) No duty for artificial conditions; except (i) unreasonably dangerous conditions or structures abutting adjacent land, (ii) must take due precautions to protect passersby, and (iii) must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property
Duties of Possessor to Those on Premises - Definition
Nature of duty owed to those on premises depends on legal status of plaintiff.
Status of the Plaintiff - 3 Types
1) Trespasser
2) Licensee
3) Invitee
Trespasser - Definition and Types (2)
One who comes onto the land w/o permission of privilege.

Either discovered or undiscovered.
Duty Owed to Undiscovered Trespassers
No duty to undiscovered trespassers and no duty to inspect in order to ascertain whether person are coming onto property
Duty Owed to Discovered Trespassers
Duty to exercise ordinary care to warn of, or make safe, known artificial conditions that involve risk of death or serious bodily harm and that trespasser is unlikely to discover.

No duty owed for natural and less dangerous artificial conditions.

Duty to exercise reasonable care in "active operations" on property.

*Easement & license holders must exercise reasonable care to protect trespasser.
When is a Trespasser "Discovered"?
1) When actually noticed on property by owner; or
2) When owner is notified by information sufficient for a reasonable person to conclude that someone is on property
Anticipated Trespassers - Definition and Duty
1) Anticipated trespassers - Owner knows or should reasonably know of presence of trespassers who constantly cross over a section of land; but posting "no trespassing" signs might serve to convert anticipated trespassers into undiscovered

2) Treated by most states on same basis as discovered trespassers
Attractive Nuisance Doctrine - Definition
Duty to exercise ordinary care to avoid reasonable foreseeable risk of harm to children caused by artificial conditions on property

*Natural condition may also suffice (body of water containing elements of unusual danger to children
Attractive Nuisance Doctrine - 4 Elements
1) Dangerous condition on land of which owner is or should be aware;
2) Owner knows or should know that young persons frequent the vicinity of dangerous condition;
3) Condition is likely to cause injury (child's inability to appreciate risk); and
4) Expense of remedying the situation is slight compared with magnitude of risk
Attractive Nuisance Doctrine - Basis of Liability
Foreseeability of harm is true basis of liability and element of attraction is important only insofar as it indicates that presence of children should have been anticipated (not necessary for child to be lured onto property by attractive nuisance/dangerous condition)
Licensee - Definition
One who enters land with owner's permission for his own purpose or business rather than owner's benefit.

Social guests are licensees.
Licensee - Duty Owed
Duty to warn of known dangerous conditions that create an unreasonable risk of harm and that licensee is unlikely to discover.

No duty to inspect for defects or to repair known defects.

Duty to exercise reasonable care in conduct of "active operations" for protection of licensee known to be on property.
Invitee - Definition
Person who enters land in response to an express of implied invitation of owner.
Invitee - 2 Classes
1) Those who enter as members of the public for a purpose for which the land is held open to the public (museums, churches, airports); and
2) Those who enter for a purpose connected with the business or other interests of the owner (store customers, employees, deliverymen)
Invitee - Duty Owed
General duty to use reasonable and ordinary care in keeping property reasonably safe for benefit of invitee.

Includes duties owed to licensees; and
Duty to make reasonable inspections to discover dangerous conditions and make them safe.

Warning may satisfy requirement to "make safe".

Usually no duty to warn is danger is so obvious that invitee should reasonably have been aware of it.
Invitee - Scope of Invitation
Invitee loses status if he exceeds scope of invitation by going into portion of premises where his invitation cannot reasonably be said to extend.

*Invitation normally does not extend to entrance & steps of building.
Invitee - Users of Recreational Land
No liability for injuries where owner permits public to use land for recreational purposes w/o charging fee, unless owner willfully & maliciously failed to guard against or warn of dangerous condition or activity.
Landowner Duty of Care - Modern Trend
Rejection of rules based on entrant's legal status and application of RP standard to dangerous conditions on land (strong minority of states).
Lessor of Realty - General Duty Rule
Tort liability in regard to conditions on the property in an incident of occupation and control.

1) Owner leases entire premises - Lessee comes into occupation & control = Duty to maintain premises so as to avoid unreasonable risk of harm to others.

2) Owner leases portions of premises to tenants - Owner remains subject to liability for unreasonably dangerous conditions in common areas over which owner has retained occupation & control.
Duty of Lessor to Lessee
Duty to warn of existing defects of which lessor is aware, or has reason to know, and lessee is not likely to discover on reasonable inspection.
Effect of Lessor's Covenant to Repair
Lessor is subject to liability for unreasonably dangerous conditions.
Effect of Voluntary Repairs by Lessor
Lessor subject to liability if voluntary repairs are made negligently and fail to cure defect.

Not necessary that negligent repair makes condition worse.
Effect of Admission of the Public
If lessor leases premises knowing that lessee intends to admit the public, lessor is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession where nature of defect and length and nature of lease indicate tenant will not repair.

Liability continues until defect is remedied.

Mere warning to lessee is not sufficient.
Tenant's Liability
Tenant remains liable to third persons from dangerous conditions within tenant's control (liability of lessor does not relieve tenant of liabililty).
Duties of Vendor of Realty
At time of transfer of possession, vendor has duty to disclose concealed, unreasonably dangerous conditions of which he knows or has reason to know, and of which vendee is ignorant and not likely to discover on reasonable inspection.

Responsibility continues until vendee should have, in the exercise of reasonable care in inspection & maintenance, discovered & remedied defect.
Statutory Standards of Care - Definition and 4 Requirements
A statute's specific duty may replace the more general common law duty of due care if:
1) The statute provides for a criminal penalty;
2) The statute clearly defines the standard of conduct;
3) Plaintiff is within the protected class; and
4) The statute was designed to prevent the type of harm suffered by plaintiff
Statutory Standards of Care - Excuse for Violation
Violation of some statutes may be excused where:
1) Compliance would cause more danger than violation; or
2) Compliance would be beyond D's control
Statutory Standards of Care - Effect of Violation or Compliance
1) An unexcused statutory violation is negligence per se (it establishes the first two requirements of the prima facie case) - It is a conclusive presumption of duty and breach of duty.

2) Compliance with the statute will not necessarily establish due care.
Duty Regarding Negligent Infliction of Emotional Distress - Definition and 2 Requirements
The duty to avoid negligent infliction of emotional distress may be breached when D creates a foreseeable risk of physical injury to P.

Plaintiff must usually satisfy 2 requirements:
1) P must be w/i the zone of danger (distress has been caused by a threat of physical impact); and
2) P must suffer physical symptoms from the distress (emotional distress manifests itself in physical symptoms).
*Severe shock to the nervous system that causes physical symptoms will satisfy this requirement.
3 Special Situations Where Requirements Not Always Necessary
1) Bystander not in zone of danger seeing injury to another
2) Special relationship between P and D
3) Other situations
Bystander Not in Zone of Danger Seeing Injury to Another
Bystander outside "zone of danger" of physical injury who sees D negligently injuring another can recover damages for his own distress as long as: (i) P and person injured by D are closely related, (ii) P was present at the scene of the injury, and (iii) P personally observed or perceived the event.
Special Relationship Between Plaintiff and Defendant
D may be liable for directly causing P severe emotional distress that leads to physical symptoms when a duty arises from the relationship between P and D, such that D's negligence has great potential to cause emotional distress (doctor's misdiagnosis that patient has terminal illness).
Other Situations Where Requirements Not Always Necessary
P may be able to recover w/o proving 2 requirements where D's negligence creates a great likelihood of emotional distress (erroneous report of relative's death or mishandling of relative's corpse).
Affirmative Duties to Act - 4 Situations
1) Assumption of duty by acting
2) Peril due to D's conduct
3) Special relationship between parties
4) Duty to control third persons
Affirmative Duties to Act - Assumption of Duty by Acting
One may assume a duty to act by acting (once D undertakes to aid someone, he is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance).

Exception: Good Samaritan statutes exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.
Affirmative Duties to Act - Peril Due to Defendant's Conduct
One has a duty to use reasonable care to aid or assist someone he has negligently or innocently placed in peril
Affirmative Duties to Act - Special Relationship Between Parties
A special relationship between the parties may create a duty to act (parent-child, employer-employee).

Common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.

Places of public accomodation have a duty to prevent injury to guests by third persons.
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