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Flashcards in Negligence: Duty Deck (17):
1

Duty

Legally recognized relationship between two parties regarding legal obligation to exercise some level of care to avoid the risk of harming persons or property. Generally, one has a duty to foreseeable Π to exercise reasonable care with regard to foreseeable risks of harm arising from one's conduct.

2

Vicarious Liability

MOST IMPORTANT: The right of control of methods/means used. Kime v. Hobbs
10 Factors
1. How much control does the employer over the details of the work?
2. Does the employee have other clients?
3. Is the work usually independent?
4. What skills are required?
5. Who supplies the place, tools, or instrumentalities?
6. How long are they employed?
7. What's the method of payment? Salary or pro rata?
8. Is the work part of the regular business of the employer?9. Do the parties believe it's an agency relationship?
10. Is the employer in business?

3

Duty to Warn

If Δ stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of the conduct. Tarasoff v. Regents of University of California

4

Duty to protect against criminal activity

In certain types of relationships, the law imposes a duty on one person to take reasonable affirmative measures to protect another from foreseeable criminal acts. Delta Tau Delta.

5

Delta Tau Delta Foreseeability Tests

1. Specific Harm (MINORITY) – No duty exists unless owner knew or should have known that a specific harm was occurring or about to occur. LIMITED
2. Prior Similar Incidents – May be duty if evidence of PSI of crime on or near landowner's property shows that the event was foreseeable. UNFAIR (first gets off)
3. Totality of the Circumstances – court considers all of the circumstances, including the nature & condition of the land, prior similar incidents, etc. BROAD & UNPREDICTABLE
4. Balancing Test – Court weighs degree of foreseeability of harm with the burden of duty imposed.

6

Duty based on Premises Liability

1. Defect in the premises
2. Activity or instrumentality
Majority: status trichotomy
Minority: general duty of care. Rowland v. Christian.

7

Status Trichotomy

1. Trespasser: Duty to avoid willful, wanton, gross negligence.
2. Licensee: Duty to avoid willful, wanton, gross negligence, & to correct or warn about potentially threatening conditions.
3. Invitee: Duty of reasonable care.
4. Ruvalcaba Test: could profit owner?

8

Limited Duty

"Limited Duty to Act, Assist, or Rescue"
The fact that the actor realizes or should realize that action on his part is necessary for another's aid/protection doesn’t impose a duty to take such action.

9

Exceptions to Limited Duty Rules

Legal duty to avoid affirmatively making the situation worse
– Special relationship between Δ & Π :
A. "friends or co-adventurers"–Farwell
B. Can quit rescue, assuming the person is not left worse off
C. Restatement 2d: held to standard of reasonable care & may not quit rescue if unreasonable to do so
–Statutory exceptions
A. Motor vehicle laws require assistance to accident victims
B. Good Samaritan Laws
C. Statues requiring assistance to emergency personnel
D. Initiation of Rescue Rule: If started to rescue, actor assumes duty

10

Emotional Harm without Physical Injury/NIED

Bystander Emotional Harm=death/serious physical/emotional injury
1. Physical Impact (Minority)
2. Zone of Danger (Majority)
3. Zone of Danger I (fear for yourself)
4. Zone of Danger II (fear for others)

11

Four Bystander Tests

1. Foreseeability Requirements of Dillon v. Legg
2. Restatement for Zone of Danger
3. Thing v. LaChusa
4. Clohessy's own factors

12

Dillon v. Legg Foreseeability Test

1. Π located near accident, not far away.
2. Shock resulted from Π’s sensory & contemp. observance of accident.
3. Π & victim closely related, not distantly

13

Restatement for Zone of Danger Test

1. allows recovery for emotional distress by bystander under Zone of Danger theory
2. Π’s threatened w/ bodily harm in consequence with viewing the death/serious injury of a member of the family

14

Thing v. LaChusa Test

1. Π closely related to injury victim
2. Π’s present at the scene at the time it occurs and is aware of it (different from Dillon)
3. Π suffers serious emotional harm

15

Clohessy Test

1. Bystander must be closely related to victim.
2. Bystander emotional injury caused by contemp. perception of event/conduct causing injury/arriving at scene soon before victim’s condition/location changes.
3. Victim injury substantial: death/serious harm
4. Bystander's emotional injury must be serious, beyond anticipated in a disinterested witness & not abnormal.

16

Exceptions to Non-invitee Status

A. Guest of a tenant (in apartments, stores, etc.)
B. Child of a tenant
C. Visitors to public buildings
D. Attractive Nuisance Doctrine
E. Restatement 2d for trespassing children

17

Restatement 2d: liable to trespassing kids if

1. PO knows/should know (1) condition exists (2) where kids are likely to trespass
2. PO knows/should know condition could be unreasonable risk of death/serious bodily harm to such kids
3. Kids don’t discover the condition or realize the risk involved
4. PO’s utility of the condition & burden of eliminating the danger < risk to kids
5. PO fails to exercise reasonable care to eliminate the danger or protect the kids