Duty of Due Care When Acting

Negligence

Elements
Duty
Breach
Cause in Fact
Proximate Cause
Damages

Duty
Duty of Due Care When Acting
Reasonable Person Standard
To conduct oneself as a reasonable person under the same or similar conditions
There is a general duty of due care where it is apparent that unreasonable behavior would cause injury to another i.e.:
Danger is foreseeable, AND
Person is aware of danger

[General duty of care to behave as a reasonable person under the same or similar circumstances where it is apparent that unreasonable behavior would cause injury to another]

Duty owed to all those that could be harmed by conduct and to foreseeable interveners (e.g. rescuers)

Reasonable Child Standard
Generally children younger than 4 can’t be negligent
Standard of a reasonable child of the same age, intelligence and experience (requires a two step analysis)
What was this child’ age, IQ and experience?
How would a reasonable child of like age, IQ and experience have acted under the same or similar circumstances
Held to an adult standard, with no allowance for beginner status, when doing adult things (e.g. driving, shooting gun)
Reasonable handicapped person standard
Standard of a reasonable person with like handicap
Does not include mental illness
Standard for Professionals and Learners
Persons with special competence (e.g. racecar driver) held to a higher standard that takes into account their superior knowledge and skills
No lower standard for learners/beginners

Special Duty (instances where there is a failure to take action)
No duty to take positive action esp. among strangers and equals (except in Vermont where there is a duty to rescue when someone is in grave physical harm and to do so would not greatly endanger)
In addition to the duty to act like a reasonable person under the circumstances there is also an affirmative duty to act in circumstances where…
There is a Special Relationship (duty to aid/protect)
Characteristics of special relationship
P is particularly vulnerable or is deprived of normal self-protection AND/OR
D has custody/power over P AND/OR
D derives some economic advantage from P
Examples of Special Relationships
Parent-child
Employer-employee
Doctor-patient
Jailer-prisoner
School-pupil
Co-ventures
Common carriers
Traditionally owed a duty of “utmost care, so far as human skill and foresight can go”
Modern View – Duty is of due care under the circumstances
Because of special relationship also a duty to aid/protect
Duty ends when passenger disembarks
Innkeepers-guest
Shopkeeper/shopper - businesses have an affirmative duty to furnish assistance to patrons who are injures on the premises, regardless of whether the injury was caused by the business
Possessors of land (see below)
Required by Statute
If statute establishes a standard of care, D owes P a duty if the statute is meant to
Protect a class of persons of which P is a member, AND
The particular interest being invaded,
Against the kind of harm that has resulted, AND
Against the particular hazard from which the harm resulted (R2d § 286)
If the statue creates a new duty there is only a private right of action where
P is part of protected class
Private right of action promotes legislative purpose
Creation of right is consistent w/legislative scheme (Uhr v East Greenbush)
Contractually Obligated (due care)
Usually only liable for misfeasance – unless other party will foreseeably rely on it
Usually liable for both parties to the contract and foreseeable victims
No duty for 3rd party beneficiaries
Exception: Crushing Liability
You Create a Risk – whether negligently or non-negligently (duty to protect from risk and aid reasonably)
You Voluntarily Begin to take Action
Begin to aid medically
You must aid reasonably
You must leave person in no worse condition than found him
Physicians are generally immune from negligence for assisting in an emergency
Begin to perform other type of action (e.g. write letter of recommendation) there is a duty to use ordinary care
Duty to Control Third Persons
When there is a special relationship
Between defendant and victim, OR
Between defendant and third party who does harm (Tarasoff v. U. of Cal.)
Vicarious Liability (Christensen v. Swenson – Birkner criteria)
Employer/principal can be liable for negligence of employee/agent if…
Employee about employer’s business as opposed to being wholly involved in personal endeavors.
Employee’s conduct substantially w/in hours and spatial boundaries.
Employee’s conduct at least partially motivated by employer’s interest
Employers may be additionally liable for their own actions
In hiring negligent employee
In encouraging them to behave riskily/negligent
Generally, no vicarious liability for independent contractors except in the case of…
Ostensible Agency (R2d § 267)
The principal, by its conduct caused victim to reasonably believe that the supposed agent was an employee or agent of the principal AND
He or she justifiably relied o the appearance of agency.
OR if work is ultra-hazardous
Exception: Business that hold their land open cannot delegate their duties as landowners
Generally parents not vicariously liable for child’s tortuous acts although may be liable for their own negligence in controlling child
Negligent Entrustment (Vince v. Wilson)
One who supplies something to another, whom the supplier knows or has reason to know to be likely to use in a negligent manner involving unreasonable risk of physical harm to himself or others can be liable for that harm
There is no duty where there is no right to control (service station operator)
Sellers of Alcohol
Tavern Keepers
Common Law – Not liable for injuries to third persons that result from the tortuous acts of purchaser’s intoxication or for injuries to the purchaser himself off premises
Statute – Some states have passed statutes creating a right of action against tavern keepers for third parties injured by a purchaser’s intoxication
Social Hosts
Generally no liability for injuries to third persons that result from the tortuous acts of a guest’s intoxication or for injuries to the guest himself
Exception – Minors
Majority – liability for injuries to the minor himself
Minority – liability to third persons injured by the minor’s intoxication
The Special Case of Land Owners/Possessor
Minority (half) – duty is of due care under the circumstances
Majority – duty depends on plaintiff’s classification
Trespassers – Not Invited
Unknown Trespasser
Generally – No Duty
Excp: CA – duty of a reasonable person
Known Adult Trespasser/Habitual Trespasser
No duty for artificial condition unless
Non-obvious (not likely to discover)
Risk of death or serious injury
No duty for natural conditions
Habitual trespasser can be made into regular trespasser by acts showing objection to intrusion unless intrusions continue and land owner does nothing
Child Trespasser – “attractive nuisance doctrine”
Duty to make safe or warn of artificial conditions/activities that involve risk of death or serious bodily injury if…
Children are known or likely to trespass
Land owner knows or should know of condition and unreasonable risk
The burden of eliminating the danger and the utility of the condition is less than the risk to children
Children are not likely to discover the condition or realize the danger
No Duty for natural conditions
No Duty for ordinary risks (water, sand pit)
Minority of jurisdictions reject the doctrine
Licensee – Invited but No Financial Gain
Includes all those that entered with at least the implied permission of the owner (door-to-door sales men, business visitors who stray from that part of the property, and process servers)
Duty to make safe or warn of knownartificial AND naturalconditions and activities that involve any risk of harm known to the land owner and not obvious to a reasonable person coming onto the land.
No duty to discover dangers/inspect
Invitee
Includes all those that are invited and that enter…
To confer a business, commercial or monetary benefit to the land owner
When land is held open to the public
AS LONG AS they remain on that part of the premises that he was invited to enter
Duty to use due care to inspect/discover and warn or make safe any dangerous natural AND artificialconditions and activities.
Criminal Activity
Generally business owners have a duty to take reasonable precautions to protect invitees from foreseeable criminal attack
Four approaches to foreseeablity:
Specific HarmRule – only a duty where aware of specific immanent attack
Prior Similar Incident Test – duty where there is evidence of previous similar crimes
Totality of the Circumstances Test – takes into consideration additional factors like nature, condition, location of land
Balancing Test – balances forseeability against burden of imposing a duty (used in Posecai v. Walmart)
Public Entrants
Includes any public employee entering land under a privilege recognized by law and irrespective of any express or implied consent of the land owner
Firefighter
Police officer
Meter reader
Duty depends on purpose
Public entrant for business purpose (sanitation workers, postal employee, etc) is owed the same duties as invitees
Public entrant not for business (police chasing burglar)
Majority - is owed the same duties as a licensee
Minority – is owed the same duties as an invitee
Public entrant to business premises during normal hours is owed duty of an invitee like all other entrants
Landlord-Tenant
Landlord
Traditionally – liable only to tenant
Modern
Liable to tenant AND 3rd persons that enter w/express or implied consent
Tenant’s duty may supercede Landlord’s if tenant has had sufficient opportunity to discover and remedy situations
Conditions at time of transfer
Only liable where injury attributable to a hidden danger of which the landlord but not the tenant is aware
NO DUTY to investigate and discover
Conditions arising later
Generally No duty
Except:
Landlord has covenant to repair tenant’s space and does not
Traditional – No Duty
Modern – Duty
Premises negligently repaired by landlord
Risk in Common Area (e.g. stairways)
Duty to warn or make safe dangerous conditions
DUTY TO INPSPECT
Tenanttreatedas if she were the owner – all the rules of owner liability above apply to her.
Recreational land users are usually barred from an action for negligence against the land owner by statute
The Special Case of Medical Malpractice
Duty = Custom
“Physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances”
Traditional View – limited standard of care to that of other physicians in the same or similar community or locality
Modern View – moving towards a national standard
Establishing a Standard
Unless accused action is so egregious as to be obviously negligent a physician’s standard of care is established by expert testimony
Only those persons, who, by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice, shall be permitted to give expert testimony (focus on procedure not practice type)
Lack of license is prima facie evidence of negligence (N.Y.)
Informed Consent
Applies only to doctors and surgeons (not hosp. or nurse)
Drs must disclose relevant information about benefits and risks inherent in the proposed treatment, possible alternatives and the likely results if the patient goes untreated
Some jurisdictions require only the level of disclosure customary in the medical profession
Others require disclosure of what the Dr should reasonably recognize would be material to the patient’s decision
Exceptions
Emergencies
No duty to inform of inexperience
Causation
Majority – must show neither patient or reasonable person would have submitted to the treatment if fully informed
Minority – must show patient personally would not have consented to the treatment if fully informed
Immunities
Intra-family immunities
Spousal
Traditionally barred from bringing suit against one another
Over half of the states have abolished this immunity
Parent-child
Traditionally barred from bringing suit against one another for personal torts
Over half of the states have abolished this immunity replaced with Reasonable Parent Test
Some states maintain immunity where negligent act involves
An exercise of parental authority over child, OR
Ordinary parental discretion
All other familial relationships give NO IMMUNITY
Government
Federal
Common Law - immune
Immune Abolished by the Federal Tort Claims Act
Discretionary immunity for functions that influence social, political, or economic goals
Ministerial liability
State and Municipality
Immune for “governmental” functions – those functions that can only be performed adequately by the government (i.e. police, fire, courts)
NOT Immune for “proprietary” functions – those functions that the city performs, but which could as well be provided by a private corporation, particularly where the city derives revenue from the operation (i.e. water, gas, electricity, public halls)
Immune for “discretionary” functions – those in which an officer or entity has some element of personal judgment or decision making as long as acting in good faith
NOT Immune for “ministerial” functions – those in which the officer or entity is left no choice of their own; it is carrying out orders or established duties
Police Liability only where there is a special relationship with victim (Cuffy guidelines)
Police promise or take action TO VICTIM
Police have knowledge that inaction = harm
Police have direct contact WITH VICTIM
AND VICTIM relies on police undertaking
Duties for Emotional Harm
Can always recover for emotional harm that comes with or results proximately from actual physical harm
Generally requires that emotional distress be physically manifested except when negligent by…
Erroneously reporting a relative’s death
Mishandling a corpse
Direct Emotional Distress – allows plaintiff to recover for emotional distress caused by threat to themselves
Traditional – Recovery required an actual impact
Change 1 – Recover if within the zone of danger
Change 2 – Recover if person of ordinary sensitivity would be seriously upset
Indirect Emotional Distress – allows plaintiff to recover for emotional distress caused by threat to another
Old View (Bovsun)
Δ’s negligence causes death or serious injury
Victim was plaintiff’s family member
Plaintiff had to be in the zone of danger
Modern View (Dillon, Porteev. Jafee) – Plaintiff may recover for severe emotional distress, with or without physical manifestations, where defendant if…
Δ’s negligence causes death or serious injury
Plaintiff and victim closely related (inc. Marriage)
Plaintiff contemporaneously observed death or serious injury at the scene of the accident
Plaintiff suffered severe emotional distress
Barnhill – Plaintiff recovers if it is reasonably foreseeable that that a family member would be injured in the type of accident that occurred
Thing – Plaintiff recovers where a reasonable person, normally constituted, would be unable to adequately cope with the mental distress engendered by the circumstances of the case.
Property – Most cases deny recovery for emotional distress when property interests are negligently injured (inc. pets)
Loss of Consortium
Duty for inter-spousal loss of consortium
Duty to parent for loss of child’s consortium
NO DUTY for loss of parent’s consortium or fiancés/live in lovers
Duties for Economic Harm
General trend is that recovery for economic loss is barred unless negligent conduct also caused physical harm
Exception - duty to protect against economic harm where plaintiffs, those that would suffer harm, are particularly foreseeable in terms of:
Type of person or entities comprising the class
Certainty or predictability of their presence,
Approximate numbers of those in the class
Type of economic expectations disrupted.
Limitations on Duty
Question of where to draw the line (emotional harm)
Prevent fraud (parental immunity)
Crushing liability (power company case)
Fear of defensive medicine (all malpractice cases)
Effect on business or trade ()
Legislation should do it ()

Breach
To prove breach must prove
What action taken
Action was unreasonable (exposed others to unreasonable risk)
Determining if Δ’s action was unreasonable under the circumstances
No liability for unforeseeable risk (Adams v. Bullock)
Reasonable care under the circumstances balances
Utility of conduct
Extent of risk
Likelihood
Alternative conduct
Costs
Hand formula says there is liability where…
Burden of action/precaution, is less than (<)
Probability of loss, times (x)
The gravity of resulting loss

(US v. Carroll Towing)

Emergency Situation
Majority – this is one of the factors considered under the circumstances
Minority – requires a jury instruction reminding them standard is reasonable in an emergency situation
Effect of Custom
Custom is evidence of negligence but is never conclusive proof
Compliance
Indicates best/no better way to act
Different standard will affect many people
Deviation
Indicates feasible alternative
Different standard will not affect many people
Reasoning
Custom often equals safest standard
If not custom ∆ less likely to know of it
Safest standard not always feasible
Expert witnesses may be required to define custom in the Δ industry – when expert witnesses are all employed by the specific industry whose custom is at issue courts will apply a more lenient standard for qualifying experts
Effect of Statute
Compliance
Sufficient - if circumstances are similar to those intended or foreseen by the legislature in creating the law
Not Sufficient - if reasonable person standard might require precaution beyond the minimum prescribed by law
Deviation
Majority - violation of the statute may be negligence per se if statute creates standard of care/duty and if person…
Willfully and heedlessly violate a statute
Who’s goal is to safeguard others
From death or bodily injury
Minority 1 – violation creates a presumption of negligence, and P must give an excuse for violation (Tedla v. Ellman)

Res Ipsa Loquitur
Used to prove breach when instrumentality of injury is unknown
Effect of establishing res ipsa
Majority – permissible inference of negligence (trier of fact may but does not have to conclude there was negligence)
Minority – rebuttable presumption of negligence (plaintiff entitled to a directed verdict unless defendant can give a satisfactory explanation of how injury happened)
Minority2 – “disappearing” presumption (plaintiff gets a presumption of negligence unless defendant can produce sufficient evidence to sustain a finding in their favor)
Must show:
Injury is of a type that usually does not occur under the circumstances in the absence of negligence
Defendant is in actual or constructive control of the instrumentality of the injury
The plaintiff did not contribute to his own injuries
“Exclusive Control” Standard
Some jurisdictions require literal exclusive control
Other jurisdictions require only substantial control
When used in medical malpractice, if a patient is unconscious a group of physicians and nurses can be found negligent even if it is possible that only one of them was negligent and none were in exclusive control
Using with a multiple defendants
A cohesive group
All possible tortfeasors are in the group
Direct Evidence
Majority View – plaintiff can use both res ipsa AND direct evidence to prove negligence
Minority View – court prohibits the use of res ipsa where plaintiff uses direct evidence to prove negligence
Constructive Notice – defect must…
Be visible and apparent, AND
Exist for a sufficient length of time prior to the accident to permit someone to discover and remedy the situation (Gordon v. American Museum of Natural History)
Exception: Business Practices Rule – where display inherently causes risk merchant is obligated to anticipate dangerous conditions (e.g. put down mats)

Cause in Fact
Plaintiff must establish a causal relationship between D’s breach and the resulting injury only to the extent that the negligence was more likely than not the cause of the injury
But For Standard
Used if there is only one tortfeasor or with concurrent liability
If the plaintiff would not have been injured but for the defendants act, the act is the cause in fact of the injury
Substantial Factor Standard
Used if there are two or more tortfeasors
If conduct of either tortfeasor alone would be sufficient to cause the injury, both are liable if each of their acts was a substantial factor in causing the injury
Joint and Several Liability
Plaintiff doesn’t need to show who caused harm where…
There are two or more tortfeasors
ALL of whom were negligent and
Any of which could have caused the injury, (damages are inseparable)
P might sue them both separately or together and recover the full extent of the damages against either one
Tortfeasors need not act in concert or concurrently to be joint and severally liable
If not ALL of possible tortfeasor were negligent and can’t show which one actually caused the injury then P cannot recover (unless using res ipsa loquitur with an unconscious patient)
Successive and Independent Liability
Initial Tortfeasor – liable for original injuries and all those proximately resulting from his wrongful act
Successive Tortfeasors – NOT liable for original injuries, only those separate injuries or the aggravation they cause
Market Share Liability
Used Primarily in DES cases
Requires that
All defendants are negligent
Product is standardized/indistinguishable

(yes-break pads, no-asbestos)