Law School for Dummies! Torts NEGLIGENCE!!

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I.                    Duty

1.      Standard of care is generally that of a “reasonable person”

a)      What would a reasonable person have done

b)      P then has to show that D owed a duty to a class of persons, including P, to take reasonable care not to cause injury

c)      Cannot cause an unreasonable risk of harm

2.      Duty is a question of law

a)      factors to consider in making policy determination of duty owed:

1.      History;

2.      Our concepts of morals and justice;

3.      Convenience of the rule;

4.      Social judgment as where loss should fail; and

5.      Foreseeability: Whether a reasonably prudent person would anticipate that an injury was likely to result from the performance or nonperformance of an act

b)      Rowland Factors for Duty: Court stated that duty is a policy decision which required the balancing of a number of considerations:

1.      Foreseeability of harm to P;

2.      Degree of certainty that P suffered injury;

3.      Closeness between D’s conduct and P’s injury;

4.       Moral blame attached to D’s conduct

5.      Burden of D and consequences to community for imposing duty; and

6.      Insurance cost and availability of risk

3.      Evolution of Duty

a)      Privity

b)      Exclusion to privity – products that could cause imminent danger if negligently made

c)      Exclusion to privity – When:

1)      Product was a thing of danger (it was reasonably certain to place life and limb in peril when negligently made; it must be probably dangerous not just possible);

2)      D knew other besides the purchaser would use the product; and

3)      D knew that no new testing would occur before the use by others

4.      Premises Liability

a)      Most states rely on the status of P AT THE TIME OF INJURY to determine D’s duty; INVITEE; LICENSEE; or TRESPASSER

b)      Invitee; Either a public invitee or a business invitee (customer)

1)      An invitee is on the premises for the benefit of the owner; may be mutual benefit

2)      Invitee status is limited to the time and the place of the invitation and for the area of visitation

3)      Duty owed is the highest duty:

i)        Duty to use reasonable care

ii)       Duty to inspect the premises for dangers; and

iii)     Duty to take steps to protect the invitee form such dangers (may be met with warnings but not always)

c)      Licensee: A licensee is on the premises with permission but for no benefit of the owner; is there for the entrants own purpose; usually includes social guests

1)      Premises that the licensee has entered ARE NOT places open to the public

2)      Licensee is not conferring economic benefit to possessor

3)      Firefighters and police performing their functions are treated as licensees; include volunteers

4)      Duty owed is not of reasonable care of premises; NO DUTY TO INSPECT

i)  Possessor has duty to warn of dangerous conditions known to the possessor but hidden to the licensee

ii) No duty to warn of open and obvious dangers

iii)                 Licensee must take premises as he finds them

iv)                 Second Restatement adds the duty to conduct certain activities on the property in a reasonable manner

d)      Trespasser: One who intentionally enters the property of another; Without permission- express or implied

1)      Two types; Known and Unknown

2)      Traditional common law was that the only duty owed was not to intentionally harm or engage in willful, wanton or reckless conduct

3)      Unknown trespasser still under common law

4)      Known trespasser is generally owed the same duty as a licensee, i.e. – duty to warn of hidden dangers known to the possessor

i)  Knowledge of trespasser can be either actual or constructive

ii) 2nd Restatement: If possessor knows that the presence of a trespasser is to be expected, then that trespasser is considered to be a known trespasser

5)      Known Trespasser in Peril

i)  When a trespasser is discovered in position of peril, a landowner is required to use ordinary care to avoid injuring him

ii) Does not include any duty to rescue

6)      Child trespasser

i)  Traditional rule is Attractive Nuisance

ii) Unless Attractive Nuisance applies then trespasser is treated the same as an adult trespasser

7)      Attractive Nuisance Elements: New Rule (2nd restatement)

i)  Possessor knows or has reason to know that children are likely to trespass;

ii) The artificial condition is one which the possessor knows or has reason to know and which it realizes or should realize will involve an unreasonable risk of death or serious bodily injury to such children

iii)                 The children; because of their youth; do not discover the condition or realize the risk;

iv)                 The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved

v)                  Possessor has the duty to use reasonable care

8)      Attractive Nuisance Elements: Old rule (Common Law)

i)  A structure/condition existed which D knew or should have known involved a risk of attraction and harm to children;

ii) The structure/condition was unusually attractive to children;

iii)                 The danger of the structure/condition was NOT apparent to immature minds;

iv)                 P was attracted onto the premises by such structure/condition (this is the difference from New Rule); and

v)                  P was less than 14 years old  

5.      Recreational Use Statutes

a)      The landowner owes the person NO DUTY of care with respect to the conditions of the property, except that the landowner is liable to the person for any injury to person or property for an act or mission that constitutes willful or wanton misconduct

b)      Exception is where the person gives valuable consideration for the use of the property

6.      Duty to Non-Entrants (those not on property)

a)      For any activity or artificial condition the duty is to use REASONABLE CARE

b)      NO DUTY for natural conditions

c)      Exception for trees:

i)  Rural landowners have no duty to inspect trees;

ii) Urban landowners have a duty to inspect and care for trees

7.      Landlord/Tenant

a)      Traditional Rule was that landlord was NOT responsible for injuries on property; Tenant was responsible

b)      Exceptions:

i)  Hidden danger exists that the landlord knows about;

ii) Premises are leased for public use;

iii)                 Premises retained under landlord’s control, such as common areas; and

iv)                 Premises negligently repaired by the landlord

8.      Duty to Rescue

a)      Ordinarily no duty to rescue

b)      Exceptions:

i)  D caused the peril to P;

ii) D assumed the duty to rescue or protect (can be by contract)

iii)                 Special relationship exists, (common carrier/passenger; landlord/tenant; employer/employee)

iv)                 By Statute (good Samaritan statute)

1.      KY applies good Samaritan to licensed or certified medical professionals

2.      VA good Samaritan statute applies to any person

c)      If D begins a rescue attempt, he owes the victim the duty to perform the rescue with reasonable care; cannot leave P worse off than he found him; cannot start a rescue attempt and then stop for no reason

9.      Slip and Fall

a)      Burden of Proof

i)  Old Rule: P had to prove that D possessor either created the condition or could have discovered and corrected it which required P to show that the condition existed long enough before P’s injury for the possessor to discover

ii) New Approach: Once P shows that she slipped and fell due to a condition of the property, a rebuttable presumption exists that the possessor did NOT maintain the premises in a reasonable manner; The possessor can then rebut that presumption with evidence that it exercised reasonable care

iii)                 Owner not liable for open and obvious conditions

10.  Social Host Liability

a)      Majority View: Social host does NOT owe a duty to person injured by drunk guest

b)      Minority view: Owe duty if social host has actual or reasonable knowledge that the driver is intoxicated at the time he took his last drink

c)      Dram Shop Statutes:

i)  No liability for Bars in serving intoxicated persons; KY has this

ii) VA has NO dram shop statute

11.  Criminal Foreseeability

a)      Specific Imminent Harm Test:

i)  VA follows

ii) Owner knows or has reason to know that acts are occurring or are about to occur on the premises that pose an imminent probability of harm to the invitee

b)      Prior Similar Incidents Test:

i)  KY follows

ii) Evidence of prior similar crimes on or near the premises can establish foreseeability

iii)                 Courts look at nature, frequency, recentness and similarity of crimes.

iv)                 Some courts require acts to be on the same premises

c)      Totality of the Circumstances Test:

i)  Focus is on the level of crime in the surrounding area

ii) Majority Approach

d)      Balancing Approach:

i)  Tennessee Follows, CA and LA

ii) Foreseeability of harm weighed against the burden imposed on business by protecting against that harm

II.                 BREACH

1.      D breaches his duty to P when D’s conduct falls below the standard of care that he owed to P.

a)      Generally a question of fact for the jury

b)      Judges will take this question away from a jury when reasonable minds cannot differ

2.      Reasonable Person Standard

a)      Reasonable man of ordinary prudence

b)      Ordinarily prudent and competent person

c)      Persons with disabilities were treated as a reasonable person with the same physical disabilities

d)      Mental Disabilities were not considered

e)      Reasonable SOBER person

3.      Reasonable Child

a)      Tender years doctrine

i)  If physically less than 7 years old, then it is conclusively presumed that such child is INCAPABLE of negligence; P cannot prove otherwise

ii) If physically between the age of 7 and 14, then the conclusive presumption disappears and is replaced by a REBUTTABLE presumption that child is incapable of negligence

iii)                 This can be rebutted by showing that the child had capacity to understand

iv)                 Once rebutted, the standard is what would a child of same Intelligence, Capacity, Education/Experience and Age have done.

v)                  Child physically over 14 is held to reasonable adult standard; VA however has ICEA

vi)                 Adult Activity Exception: If child is 7 or older AND engages in an adult activity, then the adult reasonable person standard will apply

vii)               2nd Restatement Standard: Under 5 years old; if child is 5 years old, such child must exercise that degree of care that an ordinary prudent child of same age, intelligence and experience would have used under similar circumstances; also has adult activity exception.

4.      Industry Custom

a)      Courts will usually apply their own standard of care rather than adhering to an industry standard that may not be just

b)      Courts will however adhere to industry custom in medical malpractice cases

c)      Medical Malpractice typically require expert testimony, except in circumstances where a layperson’s common sense and experience are sufficient to establish the standard of care

i)  Locality Rule: A physician’s duty is to exercise the same degree of knowledge, skill and care which a reasonably qualified physician in the same community would use under similar circumstances

ii) Most states have abolished the locality rule for expert testimony

iii)                 VA uses locality rule but expands to entire common wealth

iv)                 Exception is where the locality rule will apply if a party can prove by the preponderance of the evidence that the health care services and health care facilities available in the locality and the customary practices in such locality or similar localities give rise to a standard of care which is more appropriate than a statewide standard

v)                  TN limits to physicians who have practices in TN or in one of its 8 bordering states

vi)                 KY rule: A physician has a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which the physician belongs acting in the same or similar circumstances


5.      Negligent Supervision

a)      Parents where aware of specific instances of prior conduct to put them on notice that the act complained of might occur;

b)      Parents had the opportunity to control

c)      Parents did not control; and

d)      Child’s act caused P’s injuries

6.      Negligent Entrustment

a)      The parent entrusted the object (usually a car)

b)      To his child, knowing that due to youth, inexperience, or other factors, the child was likely to use the object in a manner involving unreasonable risk of harm to others;

c)      The child breach a duty owed to P; and

d)      The child caused the accident and P’s injuries


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