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Bar Torts > 11) Neg - Duty > Flashcards

11) Neg - Duty Flashcards

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1
Q

duty: rule

A

when D is engaged in affirmative, risk creating conduct causing PI or property damage, a duty is owed to any foreseeable P

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2
Q

duty: times there might not be one

A

1) unforeseeable P
2) nonfeasance (failure to act)
3) harm other than PI or property damage
4) D is a land possessor/LL, utility, or gvt agency

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3
Q

unforeseeable Ps: rule

A

D owes duty only to foreseeable Ps

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4
Q

unforeseeable Ps: exception

A

rescuers

rescuers are always treated as foreseeable Ps – there IS a duty to a rescuer

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5
Q

nonfeasance: rule

A

no obligation to intervene to confer a benefit on another

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6
Q

nonfeasance: things you generally have no duty to do

A

1) rescue
2) control or warn others
3) protect against 3rd party crim conduct

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7
Q

nonfeasance: exception

A

misfeasance

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8
Q

misfeasance: kinds

A

1) affirmative risk-creating conduct

2) negligent omission

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9
Q

negligent omission: def

A

failure to do something a RP would do, that creates affirmative risk of harm (ex. failure to stop at stop sign)

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10
Q

no duty to rescue: exceptions

A

1) D’s tortious conduct creates the need to rescue
2) undertaking to act
3) special relationship of dependence or mutual dependence

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11
Q

no duty to rescue: exceptions: result

A

IF an exception applies, must take reasonable steps to rescue

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12
Q

undertaking to act: rule

A

(generally no obligation to rescue) but once D undertakes to rescue, must either:
1) not leave P in worse position or
2) must act reasonably
(depends on j)

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13
Q

good samaritan statutes: rule

A

if you rescue others, but do something negligent during the rescue, you are not liable (would need gross negligence, recklessness, willfulness)

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14
Q

no duty to rescue: special relationship: examples

A 
parent/child
common carrier/passenger
inkeeper/guest
captain/ppl on boat
store owner/patron
drinking buddies (stretch)
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15
Q

duty to control or warn: rule

A

there is no duty to control or warn about the conduct of a 3rd person to prevent him from causing physical harm to another

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16
Q

duty to control or warn: exceptions

A

1) special relationships

2) providers of alcohol (kinda)

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17
Q

duty to control or warn: exceptions: spl rships: kinds

A

1) spl rship exists between harm-causer and third person that imposes a duty upon the actor to CONTROL the 3rd person’s conduct (D takes charge or control over the person w knowledge of their dangerousness)

OR

2) spl rship btwn actor and other person gives the other person RIGHT OF PROTECTION

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18
Q

duty to control or warn: exceptions: spl rships: control: examples

A

prisons
parents
psychotherapists

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19
Q

duty to control or warn: exceptions: providers of alcohol: traditional rule

A

social host or commercial establishment that provided alcohol to someone who then drove and injured a third party had NO DUTY to the 3rd party

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20
Q

duty to control or warn: exceptions: providers of alcohol: dram shop acts

A

(can be from courts)
impose LIABILITY on commercial establishments and/or social hosts who provide alcohol to someone they (should) know to be intoxicated, when that person drives and harms a 3rd party

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21
Q

negligent entrustment: rule

A

if D gives a dangerous instrumentality to someone he (should know is) not competent to handle it, then duty is owed any foreseeable P

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22
Q

negligent entrustment: conceptual fit

A

form of misfeasance – not an exception bc not really nonfeasance at all

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23
Q

duty to protect against 3rd party crim conduct: rule

A

generally no duty!

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24
Q

duty to protect against 3rd party crim conduct: exceptions

A

spl rship will trigger a duty

SOME Js: also need high level of foreseeability of 3rd party crim conduct, established by prior similar incidents of that crim conduct

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25
duty to protect against 3rd party crim conduct: spl rship: exs
LL/T business/invitee common carrier
26
D is gvt agency: duty rule
whether D owes duty to P depends on function gvt is fulfilling that gives rise to the COA
27
D is gvt agency: functions: kinds
1) proprietarty 2) discretionary 3) ministerial
28
D is gvt: proprietary function: def
gvt is acting in an area traditionally occupied by private enterprise (hospitals, LL)
29
D is gvt: proprietary function: rule
gvt owes a duty the same way any private actor would
30
D is gvt: discretionary function: def
where gvt is engaging in planning, judgment, resource allocation
31
D is gvt: discretionary function: rule
courts WILL NOT impose a duty on the gvt (sep. powers)
32
D is gvt: ministerial function: def
gvt previously made the policy decision and now is carrying it out
33
D is gvt: ministerial function: rule
YES duty -- once gvt has undertaken to act, it must do so non-negligently (pretty micro--installing the stop sign, etc) (exception)
34
D is gvt: ministerial function: exception
public duty doctrine/police
35
public duty doctrine: def
when gvt agency (police/fire) sued for failing to rpovide adequate response, NO DUTY to that indiv (exceptions)
36
public duty doctrine: exceptions
1) spl rship btwn P and agency (ex. they promised to notify when D released from prison) 2) agency has increased danger beyond what would otherwise exist
37
duty rue: D is a utility
only has duty to those who are in contractual rship w the utility (rate payers)
38
issues where P's injury is not PI or property damages, so duty issues arise: kinds
1) NIED | 2) wrongful conception/birth/life
39
NIED: situations where can arise
(duty generally limited, so there are special rules) 1) pain + suffering damages (kinda) 2) direct action 3) bystander action
40
NIED: pain + suffering: def
where D's neglince caused PI and THAT in turn caused ED, it's allowed as part of "pain and suffering" damages conceptually a little different bc P+S damages not a problem
41
NIED: direct actions: rule
(majority rule): 1) P must have been in ZONE OF DANGER, AND 2) must have PHYSICAL manifestation of ED
42
NIED: zone of danger: def
area in which you were at risk of suffering physical harm
43
NIED: direct action: exceptions
(these are so bad that you don't need zone of danger or physical manifestation to recover) 1) D negligently transmits (telegram) announcing death of loved one or 2) D negligently mishandles corpse
44
NIED: direct actions; minority rule
NIED can recover w/o ZoD or physical manifestation IF D had a preexisting duty to P
45
NIED: bystander actions: majority rule
in most js, can recover even w/o ZoD/physical, if: 1) located near scene of accident + 2) suffered severe ED + 3) had close rship w V
46
wrongful babies: related concept
straight up med mal: baby born w injury can sue dr for the injury, no spl duty issues
47
wrongful babies: kinds
1) conception 2) birth 3) life
48
wrongful conception: def
birth of healthy but unwanted child (negligently performed sterilization)
49
wrongful conception: rule
usually can get birth-related expenses only (and fixing the sterilization) (not more)
50
wrongful birth: def
wanted but unhealthy child (pregnancy would have been terminated)
51
wrongful birth: rule
some js: don't recognize this coa in js that do, sometimes will award costs of haginv child w spl needs but may offset by benefit from having a child
52
wrongful life: def
CHILD's action for injury of being born unhealthy
53
wrongful life: result
courts do not permit recovery [would put you in former position --> nonexistence?]
54
land possessor liability: who is D?
could be land owner, tenant, possessor
55
land possessor liability :3 scenarios:
1) P enters the land 2) P is near the land 3) LL liability
56
LPL: enter the land: 3 kinds
1) invitee 2) licensee 3) trespasser
57
LPL: kind of entrant: ojo!
can change even while you're still there! (going into an unauthorized part of the house, etc)
58
invitee: def
1) D's express or implied invitation AND | 2) either enters to potentially confer an economic benefit on LP, OR land is held open to the public at large
59
invitee: rule
LP has duty of REASONABLE CARE to prevent injuries to invitees (DUTY TO INSPECT + MAKE SAFE)
60
licensee: def
1) express or implied permission AND | 2) NO potential economic benefit + NOT open to the public at large
61
social guest is a
licensee
62
licensee: rule
land possessor must warn licensee of known + concealed dangers on the property no duty to search out dangers RC duty re the activities if doing activity on the land
63
trespasser: def
no implied/express permission to enter the land
64
trespasser: rule
only duty on LP is not to inflict willful or wanton harm
65
trespasser: exceptions
1) known or frequent t. | 2) child t.
66
LP: different rule!
activities on the land
67
activities on the land: rule
if D is engaged in an ACTIVITY on their land, then duty of reasonable care due to every land entrant except trespassers
68
known or frequent trespassers: rule
if known or frequent t., LP must warn of a danger on the land, if the danger is: 1) known AND 2) concealed AND 3) artificial
69
child trespasser: rule
IF the conditions/factors apply, then the child will be treated like an invitee
70
child trespasser: def factors
1) children too young to appreciate the danger? 2) foreseeable that kids would trespass? 3) D knows of dangerous condition? 4) artificial condition? 5) risk is so great that it outweighs utility and burden on D?
71
LP land entrants: minority rule
apply standard of RC to all land entrants
72
LP: P is adjacent to the land: rule
1) if artificial condition on land: duty of RC | 2) if natural condition: no duty (exception)
73
LP: adjacent: natural condition: exception
tree in urban area
74
LL liability: rule
LL does not have a duty, except in these 4 circs: 1) common area over which LL retains control 2) negligent repairs 3) LL actually knows of concealed dangerous condition (at time of leasing) 4) LL knows that T is going to hold property open to the public at large

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