Duty and Breach

Question 1

Is “duty” a question of law or a question of fact?

Answer 1

Question of law (judge)

Question 2

Duty falls in realm of ______ problems, and not __________.

Answer 2

foreseeable problems; and not extremities

Question 3

What duty does a texter have when they know the recipient is driving?

Answer 3

Texter has duty to not text driver b/c it is foreseeable that driver will check their phone

Question 4

What is the common law method of calculating duty?

Answer 4

B<PL (burden is less than probability * liability)

• when burden is less than p*l, person/party has a duty

Question 5

What is the standard to determine duty under the common law?

Answer 5

Reasonable prudent person standard

• use objective standard
• D would be imputed to have knowledge of normal person would have (idiot)
• customs may provide a reasonable care standard BUT not determinative (question of fact)
• applies for sudden emergencies that are unforeseen, sudden and unexpected (Peerless case)

Question 6

What is the duty for a reasonable prudent person standard for an ordinary person w/ different physical characteristics?

Answer 6

Disabled person who takes same precautions as someone with same disability is reasonably within the norm (blind man case)

Question 7

What duty do children have under the reasonable prudent person standard?

Answer 7

Children must take reasonable care for child-like activities that fall under what a child of same age, intelligence, maturity and training would do BUT if they are participating in adult-like activities then an adult standard applies

Question 8

What are some examples of child-like activities and adult-like activities?

Answer 8

Child-like: riding bike, monkey bars, making a fire, deer hunting

Adult-like: golfing, motorbikes, vehicle, go-karting

Question 9

What duty to the mentally insane have under the reasonable prudent person standard?

Answer 9

Majority: ordinary reasonable person standard applies

Minority: (Bruenig) person will not be liable if (1) no forewarning AND (2) does it affect person’s ability to understand duty OR does it affect ability to control circumstances (Batman + God case)

Question 10

What duty does a professional have under the reasonable prudent person standard?

Answer 10

Professionals are held to a greater standard of care when person possesses special skill/training which is more advanced than normal person (ex: pilot case)

Question 11

What does a case re: a professional reasonable prudent person standard require?

Answer 11

Requires expert testimony to explain to jury the proper application of care

Question 12

Re: attorneys, what is their duty under the reasonable person standard?

Answer 12

Attorneys are required to act in good faith to represent their clients to the best of their ability and to the best of their knowledge
* not liable for mere error in judgment
* are liable if they fail to take the proper mechanical steps

Question 13

Re: doctors, what is their duty under the reasonable person standard?

Answer 13

Majority: “similar community in similar circumstances” = use doctor in same type of community rather than inside local community to set duty of reasonable doctor within similar circumstances

Minority: national standard (ex: pelvic test case)

• expert testimony required to prove that doctor did not confirm within standard care of profession NOT just that expert would personally follow a practice

Question 14

What duty do doctors have to disclose information?

Answer 14

Doctors have duty to disclose ALL material risks that could impact patient’s decision (“informed consent”)

If P claims that doctor did not, P must prove:
* doctor failed to provide material risk before getting consent
* if P was informed, P would not have consented
* consequences not made known did occur and P was injured

Question 15

When can a doctor assume consent from a patient?

Answer 15

• patient cannot make decision
• risks are already known or will be
• emergencies
• if consent would negatively impact decision when there is full disclosure of risk (ex: alarming a mentally upset person)

Question 16

What other information must doctor disclose to their patient?

Answer 16

Doctors must disclose all economic benefit/ personal interests in a medical procedures that would influence professional judgment when securing patient’s consent (under fiduciary duty to disclose)

• to promote patient autonomy (spleen cell case)

Question 17

What are the duties of owners/occupiers of the land for people who are OFF the premises?

Answer 17

Majority: no duty upon landowner to protect people outside of premises

Question 18

What are the exceptions for when the owner/occupier of the land IS liable for people who are OFF the premises?

Answer 18

• trees (owner liable when knows or should have known that the tree is defective and fails to take reasonable precaution)

*landowner uphill has duty to protect downhill owner of landslides

• landowner liable when pedestrian slipped on break in sidewalk due to uprooted tree

Question 19

For owners/occupiers of land is liable for people OFF the premises when the owner…

Answer 19

Alters the land which makes the land “artificial” and the owner must take reasonable care for those outside of premises (ex: ballpark case)

• other examples: damming stream to pond; pilling sand where wind may blow it; if conditions on private land obstructs visibility on highway (stop sign blocked)

Question 20

What is the duty of landowners to trespassers on their land?

Answer 20

Trespasser assumes all risk when entering onto land of another (“landowners immunity”)

Question 21

What are the exceptions when landowners ARE liable to people on their land (trespassers)?

Answer 21

• tolerated trespassers = amounts to permission
• dangerous activities must be obvious
• anticipated trespassers (ex: hiking trails)
• dangerous conditions known to owner must be made aware to trespassers
• “notice” exception -> when presence has been discovered, owner has duty to prevent injury

Question 22

What is a licensee?

Answer 22

People who come to landowner for their own personal purpose (ex: social guest or come to pay business dues)

Question 23

What duty does a landowner have to their licensee?

Answer 23

Landowner must warn of any potential or hidden dangers BUT is not liable for things that are not known to them (ex: landowner did not know son was violent)

• must provide reasonable care to licensees to those that are discovered or anticipated

Question 24

What is an invitee?

Answer 24

People who enter the land of landowner for the purpose of landowner (ex: business, customers)

Question 25

What duty does a landowner have to their invitee?

Answer 25

Landowner has duty to exercise reasonable care in keeping person safe BUT are only liable when they are within scope of invitation (only applies to land where person was originally invited) (ex: customer entered store and got box from the back)

Question 26

What duty does a landowner have to a child on their premises?

Answer 26

Most courts have higher standard for landowners who have children on their premises

• “attractive nuisance” doctrine” = when landowner sets before a child a temptation, landowner must care to protect them

Question 27

When is a landowner liable to a child on their premises?

Answer 27

• knows children trespasses
• condition involves unreasonable risk of death or serious bodily injury
• child does not understand risk of intermeddling
• burden is low to decrease risk
• landowner fails to take reasonable care to eliminate danger

Question 28

What is the old rule and new rule for duty of landlords to their tenants?

Answer 28

old rule: no duty to tenant or tenant’s guests for defective conditions at the time of the lease

current rule: landlord had duty of reasonable care to those on the premises

Question 29

When is the landlord have a duty (liable) to a lessee?

*aka: the exceptions to majority rule

Answer 29

• landlord knows of defect but lessee does not
• condition is dangerous to others outside of the property
• landlord maintains control of parts of the property that lessee uses (ex: passageways)
• landlord attempts to make repairs and fails to use reasonable care
• landlord fails to use reasonable care to repair before leasing (must disclose)

Question 30

What is negligence per se?

Answer 30

Violation of the statute or ordinance

Question 31

What are the elements of negligence per se?

Answer 31

(1) whether P is person intended to protect

(2) whether injury is in category intended to protect

(3) whether appropriate to impose civil liability

Question 32

What factors do courts turn to in order to determine (3) whether it is appropriate to impose civil liability?

Answer 32

• includes clear/defined conduct?
• is liability based on failure to do something?
• whether violation indirectly or directly impacts result
• failure of criminal duty proportionate to civil
• whether there is common law duty (if not, would imposing alter common law?)

Question 33

What are the 3 rules among jurisdictions on the effect of the statutes?

Answer 33

(1) Disposition of evidence or strict liability = unexcused violation of the statute is negligence (ex: buddy w/o lights case)

(2) Rebuttable presumption = violation establishes prima facie case of negligence but can be rebutted (ex: nurse walking on street b/c of snow despite statute to walk on crosswalk is not liable b/c dangerous for her to walk on crosswalk)

(3) Mere evidence = infractions/violations are just evidence of negligence

Question 34

What duty does a person have to warn others?

Answer 34

A person does not have a duty to warn or protect another from criminal acts of a third person (b/c acts are not typically foreseen)

Question 35

When does a person HAVE a duty to warn others of third persons?

Answer 35

When there is a special relationship between the parties BUT only if the danger is known or foreseeable

(foreseeability = (1) known or reasonable (2) higher degree if they know that it will occur quickly)

ex: carrier/passenger, innkeeper/guest, employer/employee, parent/child

If they fail to render assistance and injure the party as a result of lack of due care (ex: delay of escalator case when child got caught)

Question 36

What duty do colleges have to students?

Answer 36

Colleges do NOT have a duty to prohibit off-campus drinking

Does have duty to prevent rape/murder in student dorm

Question 37

What are the examples when a doctor has a duty to warn others?

Answer 37

(1) when patient has infectious disease, having diagnosed the disease or fails to warn patient’s family

(2) prescribed medication that impairs conduct

(3) hospitals have to control dangerous patients (ex: hostile patient hits other people)

** does not have to people everything - only things that are important

Question 38

When can a person plead for intentional emotional distress under negligence?

Answer 38

i. P establishes a close familial relationship,

ii. P is present at scene and aware it is causing
injury, AND

iii. P, as a result, suffers “serious emotional distress . . . beyond that of disinterested witnesses and which is not abnormal.”

Question 39

What is the “Foreseeability” test when determining whether D had a duty to prevent emotional distress?

Answer 39

(1) whether P was located near scene of accident rather than distances away

(2) whether shock resulted from direct emotional impact upon P from sensory and observance of accident (as contrasted w/ just learning about it)

(3) whether P and victim were closely related (as contrasted w/ no relationship or distant relationship)

Question 40

What is the “Brightline” test that P has to meet to prove that they were negligently emotionally impacted by D?

Answer 40

(1) closely related to victim
(2) present at the scene of accident + aware of the cause of injury to victim
(3) as a result, suffers ED (reaction beyond which would be anticipated)

Question 41

What is circumstantial evidence and who has the burden of proof to show that D breached duty?

Answer 41

Indirect evidence where jury has to make an inference about D’s conduct

ex: banana peel slip + fall case where the description of the banana (brown, old) was used to infer how long it was on the floor

• P has burden of proof

Question 42

What does a P have to prove when using circumstantial evidence to prove that D breached a duty?

Answer 42

(1) D had actual or constructive knowledge of condition

(2) condition posed unreasonable risk of harm

(3) D did not exercise reasonable care to reduce/eliminate risk

(4) D’s failure is proximate cause of P’s injuries

Question 43

What is res ipsa loquitor?

Answer 43

When there is a lack of evidence, but injury could not have occurred w/o negligence of party (ex: barrell falling out of window case)

Question 44

What does the P have to show when claiming res ipsa loquitor?

Answer 44

Has to show that the thing at issue was under the EXCLUSIVE control of D by connecting injury to D + eliminating other responsible parties

Question 45

What is direct evidence?

Answer 45

When there are facts, including witness statements or documentation, of D’s negligent conduct