Torts Duty

Question 1

Do we typically have affirmative duties?

Answer 1

Nah, bro.

Question 2

four exceptions to not having affirmative duties

Answer 2

1. Special Realtionship
2. Voluntarily undertakes an act (esp. to warn or to act)
3. If you created a risk of harm to others
4. If you actually have injured someone

Question 3

What case gives us our co adventurers exception?

Answer 3

Farwell

Question 4

Give the five special relationships from which duty can be taken

Answer 4

1. Innkeepers and guests
2. Common carriers and passengers [unless NY]
3. Possessors of land who hold it open to the public
4. Persons who have custody of another in circumstances where the other person is deprived of normal opportunities for self protection
5. Co adventurers on a hazardous undertaking (Tarasoff)

Question 5

The ruling in Herman

Answer 5

the fact that an actor realizes that acting on his or her part is necessary for another’s aid or protection does not itself impose upon the actor a legal duty to take such action, unless a special relationship exists between the parties.

Question 6

List the seven factors California(and you on the exam!) consider when changing the default duty

Answer 6

1. Forseeability of harm [of this type to the plaintiff]
2. Degree of certainty a plaintiff will suffer injury
3. Consequences to the community in imposing that duty
4. Availibility, cost, and prevelance of insurance for the risk
5. Closeness of the connection between the conduct and the injury
6. Moral blame attached to the conduct
   7.Policy considerations when it comes to preventing future harm

Question 7

Of the seven California duty change factors, which is most important?

Answer 7

Policy considerations

Question 8

A court can decide against a duty by way of…

Answer 8

Policy considerations

Question 9

Explain the distinction between who owes duties when providing alcohol to minors

Answer 9

Social hosts generally do not have a duty toward someone allegedly injured as a result of the hosts providing alcohol to their guests.

Commercial vendors of alcohol typically DO have a duty to persons allegedly injured as a result of the vendor providing alcohol to its customers - they have the means to monitor and keep track.

Question 10

Negligent entrustment

Answer 10

One who supplies a chattel for the use of another whom the supplier knows or has reason to know is likely to use it in a manner involving unreasonable risk of physical harm to himself or others in subject to liability for resulting physical harm.

Question 11

Name some less clear situations where negligent entrustment statute still applies

Answer 11

One can indirectly supply a chattel to someone and still be subject to liability.

In many states, it is NOT limited to situations where the defendant owns or has the right to control the chattel

Question 12

Tell me the case that says a public utility doe NOT have affirmative duties to provide service

Answer 12

Strauss

Question 13

Strauss

Answer 13

A public utility does not have an affirmative duty to provide service, and it does not owe non-customers a duty to take reasonable care

Question 14

What is the traditional rule for landowner duties?

Answer 14

The duty that a landowner owes to the person on the land depends on the reason the person is there

Invitee v Licensee v Trespasser

Question 15

Who are invitees?

Answer 15

One who is invited to the land with a expectation of material benefit to the owner or one who is invited on the land as a member of the public for a purpose which the land is held open to the public

Question 16

Who are Licensees?

Answer 16

Any person who is on the land with permission who does not meet the definition of an invitee

Question 17

Who are Trespassers?

Answer 17

Any person on the land without permission

Question 18

Traditionally, what duties are owed to invitees?

Answer 18

A landowner must take reasonable measures to warn or make safe any dangerous condition of which they are aware or should be aware after a reasonable inspection

Question 19

Tell me about Landowner duties and criminal acts

Answer 19

Criminal acts can be thought of as dangerous conditions if they are reasonably foreseeable.

Question 20

What are the four criminal act as forseeable tests, and which is most common?

Answer 20

1. Landowner is aware of a specific harm about to befall invitee
2. Evidence of prior similar incidents near premises
3. Using the totality of the circumstances, all relevant facts.
4. Balancing the forseeability and gravity of the harm against the burden imposed to protect against that harm(breach is included in this test)

Number 3 is most common

Question 21

What duties are traditionally owed to Licensees?

Answer 21

Landowner owes them a duty to take reasonable measures to fix or warn for dangerous conditions for which they are actually aware

Question 22

What duties are traditionally owed to trespassers?

Answer 22

No duties, outside of willful and wanton harm

Question 23

Majority of states take the modern approach…what is it?

Answer 23

Where Lisencees and invitees are both owed a duty of reasonable care

Question 24

Actual notice and modern landowner duty approach

Answer 24

Jury decides if landowner took reasonable measures to warn or make safe any dangerous conditon

Question 25

Constructive notice and modern landowner duty approach

Answer 25

Jury decides whether or not landowner should have made an inspection

Question 26

What duties do landowners owe to trespassers under the modern approach?

Answer 26

You owe a duty of reasonable care to trespassers, but not flagrant(those attempting to commit a felony) trespassers.

Question 27

Traditional rule, toward tenants

Answer 27

Only owes duty toward their tenant if the injury is attributable to one of the following things

1. A hidden danger of which the landlord was aware but the tenant was not aware
2. Premises leased for public use
3. Premises retained under the landlord’s control(such as common areas); or
4. Premises negligently repaired by the landlord

Question 28

Modern rule, toward tenants

Answer 28

Owe a duty of reasonable care under all circumstances

Question 29

Sovereign immunity

Answer 29

government has immunity from suit, cannot be held liable without government consent

Question 30

When do police owe a duty?

Answer 30

Typically no duty to take affirmative steps to protect the public.

However, they do have a duty when there is a special special relationship with a person

Question 31

How do you have a special relationship with cops?

Answer 31

1. The police assured an affirmative duty to act through promises or action
2. They had knowledge that inaction could lead to harm
3. There was direct contact between police and the injured party; and
4. The injured party justifiably relied on the police’s undertaking

Question 32

Municipalities and streets?

Answer 32

In general a municipality owes to the public a non delegable duty of keeping its streets in a reasonably safe condition

Question 33

What duties does the government have when made aware of a dangerous traffic conditon?

Answer 33

to undertake a reasonable study with the goal of alleviating the danger, can only be held liable if there is no reasonable basis for the recommendations made.

Question 34

Under the doctrine of qualified immunity, the government cannot be held liable simply because there is disagreement regarding the recommendations given after learning about a dangerous traffic condition But it does have a duty

Answer 34

To complete the recommendations within a reasonable period of time. And can be held liable for an unjustifiable delay in doing so.

Question 35

Loss of consortium

Answer 35

When one spouse is physically injured as a result of the defendants negligence, the other spouse has a cause of action for loss of consortium - emotional harm suffered by the other spouse as a result of the loss of the injured spouse physical and emotional companionship and support through the partnership of life’s mundane activities

Question 36

What to keep in mind with clients if they claim loss of consortium?

Answer 36

Going to have to talk about their sex life on the record

Question 37

Can kids call for loss of consortium?

Answer 37

Most states do not recognize a cause of action for emotional distress by a parent when a child is injured or by a child when parent is injured

Question 38

States that do have some kind of loss of consortium for parents/kids do it in what way?

Answer 38

Some states recognize a cause of action for emotional distress[loss of consortium] by the survivors [parents or children] in their wrongful death statute.

Question 39

Physical Impact duty

Answer 39

A person who sustains a physical impact as a result of the defendants negligence may recover for any emotional injury that accompanies the physical impact

Question 40

When can one recover for exposure due to toxic substances?

Answer 40

One can recover when only when physical symptoms result from exposure to a toxic substance

Question 41

Can I recover for mere emotional injuries?

Answer 41

In general, a person who suffers an emotional injury without a physical impact cannot recover unless and until physical symptoms result

Question 42

Exceptions to the no emotional injury rule

Answer 42

Zone of danger exception (when someone else is at immediate risk of physical harm), negligently mishandling a corpse, and negligently and incorrectly informing someone of the death of a family member

Question 43

Duties professional owes

Answer 43

A professional who negligently supplies false information to another may be held liable for economic loss caused to that person by that persons Justifiable reliance on the information.

Typically, limit this duty to the recepient or one of a limited group of people that the professional intends to rely on the information or knows they intend to rely on

Question 44

can you recover for economic loss?

Answer 44

You can recover for economic loss caused by physical injury or property damage. But not economic loss alone.

Question 45

Doctrine of respondeat superior

Answer 45

Employer can be held vicariously liable for its employee’s negligence if the employee was acting within the scope of their employment (Birkner test)

Question 46

Scope of employment: When an employee is…

Answer 46

1. Conducted in action of the general kind the employee is hired to perform or “Must be about the employers business and the duties assigned by the employer, as opposed to a wholly personal endeavor
2. Conduct their actions substantially within the hours and ordinary. spatial boundaries of their employment.
3. Taking action motivated, at least in part, by the purpose of serving their employers interests.

Question 47

Employer for and employee or independent contractor can be held vicariously liable for negligence if the employer or independent contractor ____________.

Answer 47

Has actual(is the principals agent) or apparrent authority

Question 48

Apparent Authority iff

Answer 48

1. Agent represents the principal
2. Reliance on that representation by the third party
3. Change in position because of that reliance

Question 49

If the state is not given, how do we treat the common carrier rule?

Answer 49

We must analyze with and without it.

Question 50

whose purpose is safety and know a case against it

Question 51

res ipsa loquitor

Question 52

Two general sovereign immunity approaches

Answer 52

Governmental v. Propriatary
or;
Discretionary v. ministerial

Question 53

What can I assume about loss of consortium on the exam?

Answer 53

Only the spouse of a victim may recover