Flashcards in 6. Specialized Standards of Care Deck (47)
Can a child under 5 years old be sued for negligence?
What standard of care is applicable to children between 5 and 18 years old?
They are required to use the standard of care of children of similar age, experience, and intelligence, acting under similar circumstances.
When may a child be held to the Reasonably Prudent Person Standard of care?
If it is engaged in an adult activity. (Often operating a motorized vehicle)
What standard of care is used for negligence claims asserted against professionals?
A professional has a duty to exercise the skill and knowledge normally possessed by other members of the same profession in good standing.
What is the geographic frame of reference used when determining if a professional adhered to the required standard of care?
MBE: Compare to colleagues nation-wide
NY: Compare with someone of the same or similar locality
What added requirement is placed on doctors to meet their applicable standard of care?
They have an obligation to explain the risks of medical procedures before going forward.
What exceptions are there to the requirement that doctors explain the risks of medical procedures before going forward?
1. They do not need to explain commonly-known risks
2. The doctor does not need to make the disclosure if the patient is incompetent
What duty of care does a possessor of land owe an entrant?
Multi-State Approach: The duty depends on the category of the entrant
New York Approach: Reasonably prudent person standard of care, based on all of the circumstances.
What are the four categories of entrants under the Multi-State approach?
1. Undiscovered trespassers
2. Known trespassers
On the MBE, what standard of care does a possessor of land owe to an undiscovered trespasser?
On the MBE, what standard of care does a possessor of land owe to a known trespasser?
A duty to protect only from conditions on the property that are:
2. highly dangerous,
3. concealed from the trespasser, and
4. one that the possessor knew about in advance
Created by humans
Highly Dangerous Condition
Capable of killing or causing severe bodily injury
The trespasser could not have seen it.
On the MBE, what standard of care does a possessor of land owe to a licensee?
A D has a duty to protect them from conditions that are
1. concealed from the licensee, and
2. known in advance by the possessor
Anyone who comes on the property with the permission of the possessor, but does not confer an economic benefit to the possessor.
On the MBE, what standard of care does a possessor of land owe to an invitee?
A possessor owes a duty of care for a condition that is
1. concealed from the invitee, and
2. either known by the possessor, or could have been discovered by a reasonable inspection.
Someone that enters land with permission, for the purpose of conferring an economic benefit on the possessor, or enters property that is open to the public generally.
Most common type of invitee
Customer of a business
What is considered a "Reasonable Inspection"
The level of inspection that would be performed by a reasonable possessor.
Does a D have to inspect the property every day?
No, just as often as would be considered reasonable
What should you remember when dealing with the New York approach to premise liability?
A Reasonably Prudent Person exercises more effort to protect customers than a friend coming over to watch a game, and a friend more than a trespasser. Therefore, the category of the D will be considered as one of the circumstances.
What are the two special scenarios for the Multi-State approach to premise liability?
1. Firefighters and Police Officers
2. Child Trespassers
What is the Multi-State approach to Firefighters and Police Officers
A firefight or officer cannot recover at all for any injury that is an inherent risk of their job.
How does NY view the Firefighter and Police Officer rule?
NY has essentially abolished this rule, but it will bar any lawsuit if the firefighter is trying to sue the fire dept. or a coworker
What is the Multi-State approach to Children?
A trespassing child is generally owed the duty of reasonable prudence with regard to any artificial hazards on the land.
What two questions must be asked when determining whether to use the Multi-State approach to children?
1. Are children likely to come on the land?
2. Will children be able to protect themselves?
Two ways to protect against premise liability
1. Fix the hazardous condition
2. Display or announce a warning (sign, cone, etc.)
What effect does a Statutory Standard of care have on a jury?
It takes away the jury’s evaluation function — They simply become a fact-finder.