Duty of Care/ damages

Question 1

Under Duty of Care, what do you look at to determine types of cases?

Answer 1

• figure out if its a contract or a tort claim

- does it show that failure to do something injures a third person

Question 2

What is nonfeasance, with regards to privity of contract?

Answer 2

Where D has done no more than make a promise and break it. There will be no tort claim here.
EXCEPTIONS
-Public utility or common carrier
-Fraud

Question 3

What is misfeasance, with regards to privity?

Answer 3

Where he had attempted to perform, but did the wrong thing

Question 4

If you are not a member of a contract, do you have right to recover on a contract?

Answer 4

no, in order to maintain a tort action against a contract, you must be a member of the contract

Question 5

When are negligence suits in contracts permitted without privity where personal injury occurs from use of an inherently dangerous defective product

Answer 5

1. if the seller knows his buyer is seller to others- then there is a duty to make it carefully
2. he must have some sort of knowledge of the danger for this to apply

Question 6

What is failure to act?

Answer 6

An actor ordinarily has a duty to exercise reasonable care when their conduct creates a risk of physical harm when:

• injury is aggravated through lack of due care
• failure in the duty to restrain another from harming a P
• duty to exercise reasonable care by medical professionals when they determine a patient will cause violence to another
• in certain circumstances, with moral and humanitarian considerations as requirements, failure to render assistance can be considered a failure to act

Question 7

does the failure to prevent the voluntary acts of another create liability?

Answer 7

No. This refers to the case where the college students parents tried to sue because their daughter became a drug addict

Question 8

Under pure economic loss, are economic damages w/out physical damages recoverable?

Answer 8

no.
- limitaition is foreseeability
- court says there should be no duty as a legal matter, and it is too remote for Ps to recover

Question 9

What is the historical rule on emotional distress and impact?

Answer 9

there must be some kind of impact to be liable for negligent infliction of emotional distress.

Question 10

What is the modern rule on emotional distress and impact?

Answer 10

No impact is needed for negligent infliction of emotional distress

Question 11

What are the limiting principles to an emotional distress claim?

Answer 11

1. Objective physical injury (no impact) is required as long as it is produced from the emotional distress
2. no unusual sensitivities
3. P has the burden of proof that physical harm or illness is the natural result of the fright proximately caused by the D’s conduct

Question 12

What is the difference between negligent emotional distress and the eggshell skull theory?

Answer 12

Negligent emotional distress- tiny impact occurs and causes damages
Eggshell skull- impact must occur

Question 13

What is the bystander rule?

Answer 13

indirect claim as the P

• closely related to the injury victim (relationship)
• is present at the scene of the injury- producing event at the time it occurs and then is aware that it is causing injury to the victim
• as a result, suffers from serious emotional distress- a reaction by which would be anticipated in a disinterested witness which is not an abnormal response given the circumstances

Question 14

What duty do the owners and occupiers of land owe to injuries occurring off premise?

Answer 14

Do duty is owed for injuries to third parties that occur off premises of the property

• if you do know of a defect, you should do something about it
• landowner must exercise reasonable care to prevent an unreasonable risk of harm
• owner is responsible for preventing the activities of anyone on her property if she knows or should know there is danger to outsiders

Question 15

What duty do the owners and occupiers of land owe to injuries occurring on premises (regarding trespassers)?

Answer 15

-Landowner owes no duty to trespasser to make her land safe, to warn of dangers on it, to avoid carrying on danger activities on it, or to protect the trespasser in any way
-however, there can be no willful or wanton conduct
exceptions:
-trespasser whose presence has been discovered
-frequent trespassers on a very limited are of land. the D is required to anticipate the trespassers and to exercise reasonable care in his activities for their protection
-tolerated intruders

Question 16

What duty do the owners and occupiers of land owe to injuries occurring on premises (regarding licensees)?

Answer 16

There is no duty to inspect for unknown dangers, but must warn licensee of known dangers

Question 17

What duty do the owners and occupiers of land owe to injuries occurring on premises (regarding invitees)?

Answer 17

• landowner owes duty to exercise reasonable care to maintain premises
• duty is owed to a person who is expressly or impliedly an invitee
• greater duty is owed for invitee
• a visitor who is an invitee as to one part of the premises may become a license or even a trespasser if he goes to the other parts of the premises with his invitation
• private portion can be used with the owners consent: suppose the invitee receives the owners explicit authorization to go into a portion of the premises not usually open to the public. If the visitor does so purely for his own benefit, he will generally not be an invitee when he does

Question 18

What is the attractive nuisance doctrine?

Answer 18

1. The place where the condition exists is one upon which the possessor knows or has reason to know the children are likely to trespass
2. the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children and
3. children, bc of their youth do not discover the condition or realize the risk invovled in intermeddling with it or in com in within the area made dangerous by it
4. the utility of the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk of the children involved
5. the possessor fails to recognize reasonable care to eliminate the danger or otherwise protect children

Question 19

Generally, a landlord is not laible for defective conditions. What are the exceptions?

Answer 19

• duty to inspect: to find and repair damages
• defect exists prior to lease
• lessor’s promise to repair
• common areas kept under control of lessor: applies even where the condition is a natural one
• repairs negligently undertaken
• undisclosed dangerous conditions known to lessor and unknown to his lessee

Question 20

What is the merger doctrine?

Answer 20

merges reasonable person standard and rules for landowners.
test was whether in the mgmt of the property, the owner has acted as a reasonable person in view of the probability of the injury to others, and, although the P’s status as a trespasser, licensee, or invitee in light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative