Negligence - Duty

General Rule of Duty

 Duty owed to all foreseeable persons who may be injured by D’s failure to use reasonable care

No General Duty to Rescue

No duty to rescue unless a special circumstance exists

Palsgraf Split Forseeability of Harm - Cardozo

Duty only to plaintiffs within the zone of forseeable danger

Palsgraf Split Forseeability of Harm - Andrews

duty owed to everyone; limit found in proximate cause; negligence is relational but liability ends at forseeability

Specific classes of forseeable plaintiffs

Rescuers, Intended Beneficiaries, Fetuses

Rescuers

“Danger invites rescue;” A person that comes to the aid of another is a forseeable plaintiff; If a defendant negligently puts the rescued party in danger, he is liable for the rescuer’s injuries; Wagner v International Railway

Intended Beneficiaries

Third-parties that can be forseeably harmed; manufacturer owes a duty to the ultimate user even without privity; Macpherson v Buick

No Duty to Rescue, unless:

1. Special Relationship

2. Contractual Duty

3. Statutory Duty

4. Voluntary Undertaking

5. Creation of Risk

6. Control over Premises

Special Relationship

carrier–passenger, innkeeper–guest, employer–employee, school–student, landlord–tenant, doctor–patient, jailer–inmate) impose affirmative duties to protect, rescue, and supervise because one party has custody or control and the other is dependent. Tarasoff case

Contractual Duty

If D contracts to keep someone safe—like providing security, maintenance, medical care, or warnings—D has an affirmative duty to act. Security guard-guests, doctor-patient, lifeguard

Statutory Duty

If a statute or regulation is designed to protect a class of persons from a particular type of harm, failure to comply creates a duty and may be actionable negligence.

Voluntary Undertaking

One who voluntarily undertakes a rescue or service for another—even without a contract—assumes a duty to perform that aid with reasonable care and not to leave the person in a worse position.

Once you start helping—like driving someone to the hospital, providing first aid, or putting out a fire—you must do it carefully and can’t abandon the person.

Note: some states have enacted Good Samaritan statutes to protect doctors/medical personnel when they voluntarily render emergency care; applies when there is ordinary not gross negligence

Creation of Risk

One who creates a risk of physical harm has a duty to exercise reasonable care to prevent or minimize that harm

If you cause the danger—even by mistake—you must fix it or warn others. You can’t walk away from a hazard you created.

Control over premises

A person who controls property has a duty to keep it reasonably safe for those who enter.

The Standard of Care

a reasonably prudent person under the circumstances

RPP - Mental/Emotional Characteristics

Mental illness doesn’t excuse negligence—only kids get a modified standard. If you have special skills, you’re held to an even higher one

RPP - Physical characteristics

Disabilities - a blind person isn’t judged like a sighted person—they’re judged like a reasonable blind person.

RPP - Intoxication

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary

RPP - Children

A child’s conduct is judged by what is reasonable for a child of the same age, intelligence, and experience. A child engaging in an adult activity (e.g., driving a car) is held to the adult reasonable-person standard.

Cost-Benefit Analysis

B < P x L ; If preventing the harm is cheap and the potential harm is serious or likely, failing to take that precaution is negligent.

Custom - within a community or industry

Custom may inform the standard of care but does not control it; courts may find conduct negligent even if it conforms to common practice.

Custom - Safety Codes

Safety codes and guidelines are relevant evidence of reasonable care, though compliance or noncompliance does not automatically determine negligence.

Custom - Professionals

A professional must exercise the competence and diligence normally possessed by practitioners in the same field; expert evidence is typically required unless the breach is within common knowledge. (the mistake is so bad anyone can see it)

Standard of Care for Physicians

Most courts hold physicians to a national standard of care, not just the standard of their local community. “Same or similar locality” rule survives only in a minority of jurisdictions

Physicians - Informed Consent

Doctors must disclose the risks of a procedure before getting consent; failure to do so is medical negligence (lack of informed consent).

Physicians - Informed Consent Exceptions

A doctor does not have to disclose risks when:

1. The risk is commonly known;

2. The patient is unconscious;

3. The patient waives or refuses the information;

4. The patient is incompetent (but the doctor must try to get consent from a guardian);

5. Disclosure would be too harmful to the patient (e.g., might trigger a serious health crisis).

Negligence Per Se

Negligence per se applies when:

1. The statute/ordinance imposes a specific duty for safety;

2. The defendant violates that duty;

3. The plaintiff is within the class the statute was meant to protect;

4. The harm is the type the statute aimed to prevent.

Even after negligence per se establishes duty and breach…

the plaintiff must still prove actual and proximate causation.

Defense to Negligence Per Se - Impossibility/Emergency

Even where negligence per se applies, the defendant is not liable if:

• Compliance was impossible, OR

• An emergency justified the violation.

Defense to Negligence Per Se - Reasonable Violation

Statutory violation is excused if defendant

• has a physical disability making compliance unreasonable

• is a child

• used reasonable care in trying to comply but couldn’t

Carriers and Inkeepers

Affirmative duty to act to protect passengers/guests

Buses (carriers) owe a higher standard; hotels owe ordinary care. But under the Restatement, both must use reasonable care because of their special relationship with the people they serve.

Driver’s Standard of Care

Most jurisdictions hold drivers to ordinary care toward everyone in the car—guests and paying passengers.

(Minority) Some jurisdictions have “guest statutes” that limit liability to guests: drivers are only liable for gross negligence or wanton and willful misconduct toward guest passengers.

Bailor/Bailee’s Standard of Care

1. Bailment for Bailor’s Sole Benefit (e.g., friend stores your bike for free)

Bailee must avoid gross negligence (low duty).

2. Bailment for Bailee’s Sole Benefit (e.g., friend borrows your expensive camera)

Bailee must use extraordinary care; slight negligence creates liability.

3. Bailment for Mutual Benefit (e.g., paid valet, commercial storage, rentals)

Bailee must use reasonable care.

Emergency Doctrine

A defendant confronted with a sudden, unexpected emergency is judged by how a reasonable person would act in that same emergency—recognizing that less time for reflection may lower what is expected.

Only applies if the defendant did NOT cause the emergency

Who counts as a possessor of land?

Owners, tenants, and anyone in actual possession

Who Gets Limited Duty Protections?

Only land possessors get special, limited duties to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee

What duties does a land possessor owe to entrants?

A possessor must exercise reasonable care regarding:

1. Conduct creating risks;

2. Artificial conditions (man-made hazards);

3. Natural conditions;

4. Affirmative duties (e.g., rescue, special relationships) when applicable

Traditional Approach to Land Entrants

Duty depends on entrant status: invitee, licensee, or trespasser

Modern Approach to Land Entrants

reasonable care to all entrants except trespassers (restatement says “flagrant” trespassers

Landowner’s Duty to Trespassers (General)

landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers (spring-guns/traps)

Landowner’s Duty to Discovered Trespassers

Landowners owe a duty to known/anticipated trespassers to warn/protect them from concealed, dangerous, artificial conditions (not natural conditions)

Landowner’s Duty to Undiscovered Trespassers

typically no duty owed, nor do they have a duty to inspect their property for evidence of trespassers

Landowner’s duty - Attractive Nuisance

Landowner may be liable for injuries to children trespassing on the land if

• an artificial condition exists in a place where they know children are likely to trespass

• knows/has reason to know condition poses an unreasonable risk of death/gbh to children

• the children can’t appreciate the danger posed by the condition

• burden of eliminating the danger is slight compared to risk of harm presented to children

• they fail to exercise reasonable care to protect children from harm

2 types of Invitees

1) public invitee - invited to enter land for purpose which land is held open to the public

2) business visitor - invited to enter for purpose connecting to business dealings

Landowner’s Duty to Invitees

• land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.

• However, the duty of reasonable 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

Duty to Invitees - Non-delegable duty

Even if a land possessor hires an independent contractor to fix or maintain the property, the possessor is still liable if the contractor’s negligence injures an invitee.

Duty to Invitees - Recreational Land Use

Landowners who open land for free recreational use are generally immune from liability unless they act willfully, maliciously, or (in some states) with gross negligence.

Types of Licensees

1. social guests

2. tolerated presence (e.g., neighborhood children cutting across the yard)

3. emergency personnel

Duty to Licensees

Must warn or make safe concealed dangers that are known to the possessor and not obvious to the licensee.

No duty to inspect for hidden dangers for the benefit of licensees.

Owe licensees reasonable care in conducting activities on the land.

Landlord’s Liability

Once tenant takes possession, the tenant becomes the possessor and owes the duties associated with possession;

Landlord remains liable for:

• common areas

• hidden dangers they don’t warn tenants of

• public use areas

• negligent repair

• Hazards arising from repairs they agreed to make and didn’t

Tenant’s Liability

Tenant is liable for injuries to third parties for dangerous conditions within the tenant’s control, regardless of whether the landlord has liability

Duty to Off-premises victims

No duty for natural conditions off-site (except urban trees).
Duty for artificial hazards and activities that endanger people next door or on the street.

Duty of Property Sellers to buyers

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller.

• conditions that the buyer is unlikely to discover upon reasonable inspection.

• seller’s liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect