Other Special Negligence Duties

Statutory Standards of Care (Negligence per Se)

A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general common law duty of care if: (1) the plaintiff is within the protected class; and (2) the statute was designed to prevent the type of harm suffered by the plaintiff

Negligence Per Se: Excuse for Violation

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control

Negligence Per Se: Effect of Violation or Compliance

An unexcused statutory violation is negligence per se. However, compliance with the statute does not necessarily establish due care.

Affirmative Duty to Act Generally

Generally, one does not have a legal duty to act. There is no duty to rescue.

Duty to Act: Special Relationship

A special relationship between the parties such as parent-child may create a duty to act. 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 accommodation have a duty to prevent injury to guests by third parties.

Duty to Act Exception: Own Conduct

One has a duty to assist someone they have negligently or innocently placed in peril.

Assumption of Duty by Acting

One may assume a duty to act by acting: if a defendant undertakes to aid someone, they must do so with reasonable care. However, many states have Good Samaritan statutes, which exempt doctors, nurses, etc. from liability for ordinary, but not gross, negligence

Duty to Prevent Harm from Third Persons

Generally there is no such duty. An affirmative duty may be imposed if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control

Common Carriers and Innkeepers

Common carriers and innkeepers have a very high duty of care, but this only applies if the plaintiff is a passenger or guest

Automobile driver to guest

A guest in an automobile is owed a duty of ordinary care. In some states, one is liable to nonpaying passengers only for reckless tortious conduct.

Bailment Duties

In a bailment relationship, the bailor transfers to the bailee possession of chattel but not title (aka a loan)

Duties Owed by Bailee

A bailee’s standard of care depends on who benefits. If the bailment: (1) is for the sole benefit of the bailor, there is a low standard of care; (2) for the sole benefit of the bailee, there is a high standard of care; and (3) for mutual benefit there is ordinary standard of care. The modern trend applies a duty of ordinary care under the circumstances, with the type of bailment being one of the circumstances

Duties Owed by Bailor

If the sole benefit is for the bailee, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware

Emergency Situations

A defendant must act as a reasonably prudent person would under the same emergency conditions. An emergency is not considered if the defendant is the one who created the emergency.