Flashcards in Negligence - Duty Deck (53)
A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff's damages.
Within Negligence, is there a duty to act?
No, the general rule is that there is no duty to act.
Are there exceptions to the "no duty to act" rule?
Yes, where there are special relationships and under certain circumstances.
What relationships or circumstances create an exception to the "no duty to act" rule?
1. Contractual Relationships (Nurse/Patient, etc.)
2. Assumption of Duty to Act by Acting
3. Creation of Peril
4. Special Relationships
What happens when one assumes a duty by acting where there is otherwise no duty to act?
Assumption of Duty to Act While Acting
1. One who gratuitously acts for another is then under a duty to continue the assistance.
2. This is because, if one assumes a duty, it could be that others who may have aided didn't go because of the person assuming the duty.
What special relationships may require a duty to act?
When must a Parent/Spouse assume a duty to act?
1. Knows of the need to act;
2. Reasonable likely to succeed.
What is the duty to act by Common Carriers/Innkeepers?
Duty to use reasonable care to protect passengers or guests.
What is the duty to act by Schools?
Duty to protect students within boundaries of school/university.
What is a "creation of peril" duty to act?
When one negligently places another in a position of peril, they are under a duty to use reasonable care to
Is there a statute that encourages healthcare workers and to assist where there is otherwise is no duty to act?
Yes, the "Good Samaritan" statute.
Does the "Good Samaritan" statute impose a duty to act?
No, it only exempts healthcare professionals who voluntarily help another in an emergency from liability under ordinary negligence.
Who is owed a duty of care?
Only foreseeable plaintiffs are owed a duty of care.
Are plaintiff's generally clearly foreseeable?
Yes, plaintiff's are generally clearly foreseeable.
Is a third party ever a foreseeable plaintiff?
Yes, when the breach of duty to one person causes injury to a third party.
Are all third parties foreseeable plaintiff's?
No, only those within the foreseeable "Zone of Danger" (Cardozo).
Note* Cardozo’s Zone of Danger applies only to third parties.
Are rescuers foreseeable plaintiff's?
Rescuer's are ALWAYS foreseeable plaintiffs because "Danger invites Rescue." Rescuer's never assume the risk.
What are the two standards of care in negligence?
1. General Standard
2. Specific Standard
How is the general standard of care determined?
By the reasonable prudent person test.
Under the general standard of care, are physical characteristics taken into account?
Yes, under the general standard of care, physical characteristics are taken into account.
Under the general standard of care, are mental characteristics taken into account? Negligence
No, under the general standard of care, mental characteristics are not taken into account?
How is a Specific Standard of Care determined?
In many ways depending on the specific situation:
1. Custom and Usage
2. Emergency Situations
3. Children (heavily tested)
5. Automobile Guest Statutes
6. Common Carriers and Innkeepers
8. Control of Third Persons (heavily tested)
9. Owners and Occupiers of Land (not on midterm)
Can Custom or Usage be used to determine a specific standard of care?
Yes, it may be used to establish a standard of care.
Can Custom or Usage be used to determine whether conduct amounted to negligence?
No, custom and usage DOES NOT control question as to whether conduct amounted to negligence.
What is the specific standard of care in Emergency Situations?
To act as a reasonable person under the SAME emergency conditions.
Will an emergency be considered if of defendant's own making?
No, an emergency will not be considered if of defendant's own making.
What is the specific standard of care for Children?
Define: Children are held to the standard of a child of like: Age, Education, Intelligence and Experience (AEIE)
What is the specific standard of care if a child is engaged in adult activities?
The child is required to conform to an adult standard of care.
Note: On the essay, if it's a child engaged in adult activities, discuss child standard of care first, then adult standard of care.
How old can a child be measured against the child standard of care?
Child standard is up to, and including, are 17.