Negligence: General and Special Duties

PFC for Negligence

(1) a duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury; (2) a breach of that duty by the defendant; (3) the breach is the actual and proximate cause of the plaintiff’s injury; and (4) damages

Duty of Care Foreseeable Plaintiffs

A duty of care is owed only to foreseeable plaintiffs: the class of persons who were foreseeably endangered by the defendant’s negligent conduct

Duty to Rescuers

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril. Firefighters and police officer are barred by the “firefighter’s rule” from recovery caused by the inherent risk of their jobs

Basic Standard of Care: Reasonably Prudent Person

All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable plaintiffs. This is an objective standard and a defendant’s deficiencies and inexperience are not taken into account

Basic SoC: Exceptions

A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience. Certain physical characteristics such as blindness, deafness may be taken into account to an extent.

Special Negligence: Children as Defendants

Children are held the standard of a child of like age, intelligence, and experience. This is a subjective test. Children under five are usually without capacity to be negligent, but children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care

Special Negligence: Professionals as Defendants

A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing. For doctors, most courts apply a national standard of care

Duty to Disclose Risks of Treatment

A doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the plaintiff’s position would have withheld consent upon learning that risk.

Special Duties: Possessors of Land

Under the traditional rule, the possessor of a land owes various levels of standards of care to: unknown trespassers, known trespassers, licensees, and invitees.

Special Duty: Unknown Trespassers

No duty of care is owed to an undiscovered trespasser

Special Duty: Known Trespassers

A possessor of land has a duty to discovered or anticipated trespassers to warn of or remedy conditions that are: (1) artificial; (2) highly dangerous (involving risk of death or GBI); (3) concealed; and (4) known to the land possessor in advance

Licensee Definition

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or benefit rather than for the possessor’s benefit. Social guests are licensees, and firefighters/police are typically licensees

Duty owed to Licensees

A land possessor has a duty to licensees to warn of or make safe hazardous conditions that are: (1) concealed; and (2) known to the land possessor in advance. The possessor must exercise reasonable care in the conduct of “active operations” on the property, but has no duty to inspect or repair.

Invitees Definition

An invitee enters the land for a purpose connected with the business of the land professor or as a member of the public for a purpose for which the land is held open to the public. They lose their status if they exceed the scope of their invitation.

Duty owed to Invitees

A land possessor owes a duty regarding hazardous conditions that are: (1) concealed; and (2) known to the land possessor in advance or could have been discovered by a reasonable inspection.

Attractive nuisances

An attractive nuisance is: (1) a dangerous condition on the land that the owner is or should be aware of; (2) the owner knows or should know that children might trespass on the land; (3) the condition is likely to cause injury (dangerous 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. The child does not have to be attracted to the land by the dangerous condition, and attraction alone is not sufficient for liability

Attractive Nuisance Standard of care:

A landowner has the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.

Duty Owed to Users of Recreational Land

A landowner who permits the general public to use their land for recreational purposes without charging a fee 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

Duty of Possessor to People Off Premises

There is generally no duty to protect someone off the premises from natural conditions on the premises, but there is a duty to protect people off the premises from unreasonably dangerous artificial conditions or structures abutting adjacent land. One must carry on activities on the premises so as to avoid unreasonable risk of harm to others off of the premises

Duty of Lessee of realty

A lessee has a general duty to maintain the premises. If a guest of the lessee is injured, the lessor may be liable and the lessee may also be liable as the occupant of the premises

Duty of Lessor of Realty

The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable. If a guest of the lessee is injured, the lessor may be liable

Duties of Vendors of Realty

A vendor must disclose to the vendee (1) concealed, unreasonably dangerous conditions (2) of which the vendor knows or has reason to know, and (3) which the vendor knows the vendee is not likely to discover on reasonable inspection