Duty & Breach of Duty

General duty of care - Restatement

An actor ordinarily has a duty to exercise reasonabyl care when the actor’s conduct creates a risk of physical harm

res ipsa loquitur

1. The injury is of the kind that does not ordinarily occur without negligence or is uncommon in the course and nature of said act.

2. The injury is caused by an agency or instrumentality within the exclusive control of the defendant.

3. The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.

4. The defendant's non-negligent explanation does not completely explain plaintiff's injury.

Circumstantial evidence

Circumstantial evidence requires inferential reasoning

Slip and falls

Breach, where defendant has duty of care

Defendant must have actual or constructive notice of the hazardous condition unless dangerous conditions are continuous

Physical impact for NIED?

Where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligence, the plaintiff may recover

Negligent infliction of emotional distress

1. The plaintiff must be closely related to the injury victim,

2. The plaintiff must be present at the scene at the time of the injury, and must be aware that the victim is being injured, and

3. The plaintiff must suffer emotional distress as a result

Invitee

Someone on land for the benefit of the owner, for business purposes

Licensee

Someone on land for their own benefit, like a social guest

Trespasser

Someone on land without the owner’s consent

Duty owed to invitees

Duty of reasonable care under the circumstances to keep premises reasonably safe

Duty owed to licensees

Duty to warn of hidden dangers unknown to the guest of which the owner has actual or constructive knowledge

Refrain from injuring guest wilfully or wantonly

Duty owned to trespassers

Generally, refrain from injuring wilfully or wantonly

Duty arises when owner discovers trespasser in peril

Recreational use statute

Lowers or eliminates duty of care for private landowners where the land is open to the public free of charge

Attractive nuisance doctrine

A land possessor is liable for harm to trespassing children caused by an artificial condition if:
(1) the possessor knows children are likely to trespass;
(2) the condition poses an unreasonable risk of serious harm;
(3) the children, due to youth, do not appreciate the risk;
(4) the burden of eliminating the danger is slight compared to the risk; and
(5) the possessor fails to exercise reasonable care to protect them.

Thing v. La Chusa standard for NIED

1. The plaintiff must be closely related to the injury victim,

2. The plaintiff must be present at the scene at the time of the injury, and must be aware that the victim is being injured, and

3. The plaintiff must suffer emotional distress as a result

Exceptions to general no duty rule for trespassers

• Known trespassers

• Constant trespassers

• Implied licensees/tolerated intruders

Landlord’s duty of care in common areas

Duty of reasonable care to inspect and repair those parts of the premises for the protection of lessee and guests

Artificial conditions

Landowners who alter the conditions of their land must exercise reasonable care for the protection of those outside the land

Trees

Landowner liable if he knows or should have known that tree is defective and fails to take reasonable measures

Duty to protect those outside the premises

Generally no duty regarding conditions arising in the state of nature

Health professionals duty to warn

Mental health professionals have duty to warn individuals specifically threatened by a patient

Driver’s duty of care when passenger engaged in dangerous conduct

Driver has duty to make reasonable attempt to prevent passenger from repeating foreseeable conduct

Owner of dangerous property

Liable when foreseeable danger outweighs expense to make safe (unlocked lock)

Relationship between defendant and third party wrongdoer

Certain relationships may impose an affirmative duty to protect others outside the relationship

1. Parent and child

2. Custodian and those in custody

3. Employer and employee

4. Mental health professional and patient

Duty of university re: students

No duty to regulate the private lives of students

Duty based on special relationship

An actor in a special relationship with another owes the other a duty of reasonable care regarding risks that arise within the scope of the relationship

1. Common carrier and passengers

2. Innkeeper and guest

3. Business and customer

4. Employer and employee

5. School and student

6. Landlord and tenant

7. Custodian and those in care

Duty to warn, protect, or rescue from danger created by other source?

General rule: No duty

Duty and policy concerns

Duty may be limited as a matter of public policy

E.g. duty of social host to prevent drunk driving

Standard of care for children

Reasonably careful child of the ssamer age, intelligence, maturity, experience, and training

Exception to child standard of care

Inherently dangerous activities = adult standard of care

Can customs be used to establish a standard of care?

Yes, but not conclusively - jury must find reasonable

The custom be fairly well defined and in the same profession or industry so that the actor knows or should know of it

Standard of care of a professional

Professionals are held to the standard of other professionals in that field

Specialists may be held to a higher standard than generalists

Duty imposed by statute

Duties may be imposed by statutes for the protection or benefit of others

Injuries to those the statute was designed to protect are a breach of the duty

Negligence per se

Establishes duty and breach

A violation of a statute or regulation which results in the type of injury the statute was intended to prevent, to the type of person the statute was intended to protect

Still must show causation and damages