Negligence: Standard of care

Negligence Per Se

The standard of care can sometimes be determined by statute.  In most jurisdictions, a violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach).

Negligence Per Se - Elements

When a defendant fails to perform a specific duty imposed by statute, he is liable in negligence to (1) anyone in the class of people intended to be protected by the statute for (2) harms of the type the statute was intended to protect against.

Once negligence per se is established, for D to be liable, P must prove that his injuries were proximately caused by the defendant's violation of the statute.

Standard of Care

Objective standard: reasonably prudent person under the circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

• Customs: Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

1. Mental and Emotional Characteristics

• Objective standard—defendants with specific mental or emotional conditions are subject to the

same standard as everyone else

2. Physical Characteristics

• Modified Standard — particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics

Example 33: A blind defendant will be evaluated in comparison with a reasonably prudent person who is blind.

3. Intoxication

• Objective standard—held to the same standard as sober people unless the intoxication was involuntary.

4. Children

• Modified standard – reasonable child of similar age, intelligence, and experience.

• Minors: standards for minors is more subjective in nature because children are unable to appreciate the same risks as an adult.

• Adult activities — Children engaged in high-risk adult activities (e.g., driving a car) are held to the objective standard for adults.

Standards of Care for Specific Situations

1. Common Carriers and Innkeepers

• Traditional rule: Utmost care—highest duty of care consistent with the practical operation of the business

• Many courts today: liable only for ordinary negligence (not a higher standard)

• Majority of courts continue to hold common carriers to the higher standard of care, but now hold innkeepers to the ordinary negligence standard.

2. Automobile Drivers

• Guests and friends in a car—drivers were traditionally liable only for grossly negligent, wanton, or willful misconduct (often under “guest statutes”).

• Most jurisdictions apply a general duty of reasonable care.

3. Bailors and Bailees

• Bailment—a bailee temporarily takes possession of another’s (the bailor’s) property.

• Common law: Complicated rules regarding the standard of care in a bailment; for example:

  • Bailor must warn a gratuitous bailee of known conditions

  • If the bailor receives the sole benefit, then the bailee has a lesser duty.

  • If the bailee receives a benefit, then he has a higher duty of care; even slight negligence

    can result in liability.

4. Emergency Situations— standard of care is that of a reasonable person under the same circumstances.

Professionals

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

With regard to professionals, deviation from the relevant custom is dispositive evidence of a breach. Similarly, compliance with the relevant custom is dispositive evidence that the professional did not breach a duty of care.

Informed Consent

• Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment.

• Failure of a physician to secure informed consent from the patient constitutes a breach of the physician's duty toward the patient and is actionable as medical malpractice.

• Doctors are not under an obligation to disclose when the risk is a commonly known risk, the patient waives or refuses the information, the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian).

Possessors of Land—relates to negligence in the maintenance of property

 Two Approaches

o Traditional tripartite structure—one-half of jurisdictions continue to follow this approach

• The standard of care depends on the status of the entrant

o Modern (California) way—one-half of jurisdictions follow this approach

Traditional Approach

a. Invitees

• Someone who comes onto the land for a material or economic purpose

  • Public invitee—the land is held open to the public

  • Business visitor—for a purpose connected to business dealings with the possessor of the land

• Land possessor owes a duty of reasonable care to inspect the property discover unreasonably dangerous conditions, duty to warn of known dangers, and take reasonable steps to protect the invitee.

• Non-delegable duty—cannot avoid the duty by assigning care of the property to an independent contractor.

• Scope of Invitation: The duty of care owed to an invitee does not extend beyond the scope of the invitation and the invitee is treated as a trespasser in areas beyond that scope.

b. Licensees

• Enters the land with express or implied permission (i.e., customer)

• Land possessor has a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions.

  • No duty to inspect for dangers

  • No duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.

  • Must exercise reasonable care in conducting activities on the land as well as to control the activities of third parties on their property.

c. Trespassers

• Someone on the land without consent or privilege

• Duty: no duty to (undiscovered) trespassers to inspect and make sake

• Exception: refrain from willful, wanton, intentional, or reckless misconduct.

• Discovered or anticipated trespassers—When a land possessor should reasonably know that trespassers are consistently entering his land, they owe duty to warn or protect from hidden dangers

• Attractive nuisance” doctrine—may be liable for injuries to children trespassing on the

  land if: find the factors in the next card.

• “Flagrant trespassers”—in some jurisdictions, owed an even lesser duty of care

Attractive nuisance” doctrine—may be liable for injuries to children trespassing on the land if:

a) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;

b) The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm.

c) The children, because of their age, do not discover or cannot appreciate the danger;

d) The utility of maintaining the condition is slight compared to the risk of injury; and

e) The land possessor fails to exercise reasonable care

California way (minority and Third Restatement)

o Some states—reasonable standard of care under all the circumstances for all entrants

• The circumstances include the reasons the person is on the property

Example 39: The fact that the land entrant is trespassing is something the jury may consider in deciding whether the land possessor exercised reasonable care

o The Third Restatement § 52—reasonable care under the circumstances, except “flagrant

trespassers”

• The only duty to flagrant trespassers is to not act in an intentional, willful, or wanton

manner to cause physical harm.

Example 40: A burglar in a home would be a flagrant trespasser, but someone injured while walking in a park at night after the park was closed would not be a “flagrant” trespasser.

Note 5: This distinction has not been widely adopted by the courts.

Landlord and Tenant

Landlord must:

• Maintain safe common areas;

• Warn of hidden dangers (especially for premises that are leased for public

use); and

• Repair hazardous conditions

Note 6: As an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant’s control.

Off-Premises Victim

o Generally, land possessor is not liable for injuries resulting from natural conditions

o Artificial conditions—must prevent unreasonable risk of harm to persons not on the premises