Negligence - duty

Question 1

Prima Facie case for Negligence

Answer 1

(1) duty on the part of the D to conform to a specific standard of conduct
(2) A breach of that duty by D
(3) actual and proximate cause
(4) Damage

Question 2

Rescuer (rescuer getting injured while rescuing)

Answer 2

Foreseeable P where D negligently put himself or a third person in peril.

Question 3

Rescuer (rescuer injuring another while rescuing)

Answer 3

• a D who placed another in peril has an affirmative duty to act to assist. (whether D’s initial conduct was negligent or not)
• a D who did NOT place another in peril :One may assume a duty to act by acting (e.g., once defendant undertakes to aid someone, he must do so with reasonable care).

Question 4

Good Samaritan Statute (re: doctors committing negligence while assisting)

Answer 4

Exempt doctors, nurses, etc. from liability for ordinary negligence when they voluntarily and gratuitously render emergency assistance.
- But not gross negligence.

Question 5

Children(D)- standard of care

Answer 5

• Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test.
• A child under five is usually without the capacity to be negligent.
• Children engaged in adult activities may be required to conform to an “adult” standard of care.

Question 6

Common carriers and innkeepers (to passenger or guest)

Answer 6

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence.

Question 7

To undiscovered trespasser

Answer 7

No duty at all

Question 8

To discovered or anticipated trespasser

Answer 8

Duty to warn of or make safe if

• known conditions
• that are nonobvious and highly dangers (risk of death or serious bodily harm)
• only for artificial conditions.

Question 9

Attractive nuisance doctrine (child)

Answer 9

Duty to warn or make safe

• foreseeable risk (owner is or should be aware of)
• to child (known or should’ve known)
• if the risk outweighs expense of eliminating danger

Question 10

Who are Licensee

Answer 10

A licensee is one who enters on the land for his own purpose or business, rather than for the possessor’s benefit. (ex: social guests)

Question 11

Duty owed to Licensee

Answer 11

Duty to warn of or make safe

• known conditions
• nonobvious and dangerous risks

Question 12

Who are invitees

Answer 12

• Invitees enter land in response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public).

Question 13

Duty owed to Invitees

Answer 13

same duties owed to licensees PLUS

- a duty to make reasonable inspection to discover nonobvious dangerous conditions.

Question 14

Negligence per se

Answer 14

(1) P is whiting the protected class
(2) the statute was designed to prevent the type of harm suffered by P
+ To prove the availability of the statutory standard, a plaintiff must show that the standards set out in the statute are clearly defined.

Question 15

Excuse for violation of statute - (Neg Per Se case)

Answer 15

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant’s control.

Question 16

NIED

Answer 16

• Conduct required: subjecting P to threat of physical impact or severe emotional distress likely to cause physical symptoms.
• Damage: physical symptoms from the distress

Question 17

NIED Bystander recovery when another is physically injured

Answer 17

P bystander must be

(1) closely related to the injured
(2) be present
(3) observe or perceive the injury