Negligence DUTY - Riess Spring 2022

Duty Prima Facie Elements

(1) act/conduct, (2) foreseeable plaintiff, (3) foreseeable risk, (4) reasonable care

Landowner duty, dangerous conditions (trichotomy - invitee)

(1) express/implied consent of owner AND potential monetary advantage or (2) public building is entitled to due care

Landowner duty, dangerous conditions (Rowland, Balancing Factors)

(1) foreseeability of harm to P, (2) degree of certainty that P was injured, (3) closeness of connection - conduct and injury, (4) moral blame of D, (5) preventing future harm, (6) burden to D, (7) consequences to the community, (8) availability, cost, and prevalence of insurance

Landowner duty, dangerous conditions (trichotomy categories)

(1) invitee, (2) licensee, (3) unanticipated trespasser, (4) anticipated trespasser, (5) child trespasser

Exceptions to the general duty principal

(1) nonfeasance, (2) dangerous condition on land, (3) problematic type of harm, or (4) reason to create a new, limited duty

Type of harm: economic harm (Irving factors for special relationship)

(1) was the transaction intended to affect the plaintiff, (2) was the harm foreseeable, (3) the degree of certainty that the plaintiff suffered the injury, (4) closeness of defendant's conduct to injury, (5) moral culpability of the defendant conduct, (6) the policy of preventing future harm

Type of harm: prenatal tort

(1) wrongful conception, (2) wrongful birth, (3) wrongful life. Courts don't really want to talk about abortion, disability rights, the value of a person, so we collapse into one rule

Type of harm: prenatal tort (wrongful birth)

Doctor's negligence allegedly lead to the birth of a disabled child. Alternative is abortion. Court allow on the ground that we can compare to a standard of care and there is an extra cost of raising someone with a disability

Type of Harm: economic harm

Generally, no duty when the only loss is economic. Unless (1) special relationship

Nonfeasance

Generally, nonfeasance does not create a duty. There are exceptions for (1) special relationship, (2) prior conduct creating risk, (3) instrumentality under D's control, (4) assumption of duty via contract/promise, (5) voluntarily starting aid, (6) statute creating explicit duty, (7) duty to warn (tarasoff), (8) parent's duty to control children, (9) landowner duty to protect against crime, and (10) police duty to protect

Nonfeasance (landowner duty to protect against crime - specific harm test)

No duty unless owner knew or should have known that specific harm was going to occur (limits to most extreme cases)

Question of?

Question of law which the judge decides, this is a threshold element

Nonfeasance (special relationship)

There can be a special relationship which requires a duty to act, assist, or rescue if there is (1) dependency and (2) power. Examples include parent/children, doctor/patient, teacher/student, common carrier/passenger, inn/hotel guests, employers/employees

Landowner duty, dangerous conditions (trichotomy - child trespassers)

a child trespasser must be warned of an artificial, attractive nuisance, i.e. (1) artificial condition, (2) hazardous, (3) unfenced, (4) unhidden, (5) attracts child on land

Nonfeasance (landowner duty to protect against crime)

a social guest who has been invited by the landowner to the landowner's land is to be treated as an invitee and the landowner is reasonable for exercising a reasonable amount of care to protect them from crime. 4 tests used: (1) specific harm test, (2) prior similar incidents test, (3) totality of the circumstances, (4) balancing test (CA)

CA Civil Code - Death on Property

an owner shall not be liable to any person for any injury to death that occurs on a property during the course or after the commission of any felonies set forth by the injured to deceased person

Type of harm: prenatal tort (wrongful life)

child sues for being born with a disability, alleged suffering. Alternative is abortion. Most courts do not recognize a duty for these claims because value of a life with disability is not something the court is set up to answer. CA allows for damages for (1) extraordinary costs associated with training and medical care

Type of harm: prenatal tort (wrongful conception)

doctor's negligence allegedly lead tot he birth of a healthy child, i.e. sterilized/contraception but gave birth anyways. Court allow because (1) malpractice, (2) standard of care can be determined, and (3) damages present for either birthing or raising costs

Emotional Harm Duty (bystander liability - thing test)

duty if and only if (1) P is closely related to the victim, (2) present at the scene & aware of injury, and (3) suffers severe emotional distress that is not abnormal under the circumstances

Nonfeasance (landowner duty to protect against crime - balancing test)

foreseeability of the harm vs. burden of the duty imposed (still a high emphasis on prior incidents)

Emotional Harm Duty

generally, there is no duty if the only harm inflicted is emotional unless (1) exposure to physical risk, (2) bystander, (3) independent duty, or (4) fear of future disease

Nonfeasance (prior conduct created risk)

if the defendant's prior conduct created risk, there may be a duty to act, assist, or rescue

Nonfeasance (duty to warn - Tarasoff)

if therapist or possibly another professional (1) has a special relationship with the perpetrator, (2) determined or reasonably should have determined that the perp was dangerous, and (3) there is a foreseeable victim (either (a) clearly ID'able or (b) generally foreseeable), then (4) there is a duty to either (a) warn or (b) exercise reasonable care.

General duty principal

if you act, you owe a duty of reasonable care to foreseeable plaintiffs against foreseeable risks

Nonfeasance (assumption of duty via contract/promise)

if you are in a contract you owe a duty (ex. lifeguard, babysitter) and gratuitous assumption of duty can be assumed if there is evidence that the duty was actually assumed

Emotional Harm Duty (bystander liability)

in order for a bystander to recover for emotional harm in a negligence suit, (1) must show that the principal has a claim via all elements of negligence and (2) must use either (a) zone of danger, (b) dillon, or (c) thing test

Nonfeasance (landowner duty to protect against crime - prior similar incidents test)

landowner may owe a duty of reasonable care if evidence of prior similar incidents or crime on or near owners property shows that the crime was foreseeable. Consider (1) number of prior similar incidents, (2) proximity in time/location to present crime, (3) similarities of the crime (first victim has no right to recover)

Misfeasance v. Nonfeasance

misfeasance is an act or a negligent omission, nonfeasance is a non-action

Nonfeasance (Voluntarily starting aid)

once a volunteer starts aid, they can quit so long as (1) the other party is no worse off than before or (2) it is reasonable to quit UNLESS (3) the harm is suffered because of the others reliance on the undertaking

Nonfeasance (parent duty to control children)

parents are not automatically liable for their children's torts UNLESS (1) parents trusts child with instrumentality which, based on the child's age, would create a source of danger for others, (2) child committing a tort is acting as a servant/agent of parents, (3) parent directs, consents, or sanctions the wrongdoing, or (4) parent fails to exercise control over the child although the parent knows or should have known that injury to another is possible

Emotional Harm Duty (bystander liability - zone of danger test)

relative can recover if they were in the zone of danger

Landowner duty, dangerous conditions (trichotomy - anticipated trespassers)

someone in which the landowner knows that they are going to the land or ignores any evidence of their existence is owed (1) warning/fixing artificial traps known to owner and (2) no willful/wanton injury

Landowner duty, dangerous conditions (trichotomy - unanticipated trespasser)

someone that trespasses on your land that you don't know about is entitled to no willful/wanton injury

Landowner duty, dangerous conditions (trichotomy - licensee)

someone you like. express or implied consent of owner is owed (1) warning against/fixing non-obvious traps and (2) no willful/wanton injury

Nonfeasance (landowner duty to protect against crime - totality of the circumstances (Delta Tau Delta test))

the court considers all of the circumstances surrounding the event including (1) condition and location, (2) prior similar incidents, (3) knowledge/potential knowledge of the crime, and (4) other factors (can be considered to broad, requires anticipation)

Nonfeasance (police duty to protect)

the police's duty to protect the public generally does not transfer to duty of care for an individual unless some special relationship exists (although some jdx. are moving away from this). To determine if there is a special relationship, the court looks at (1) direct contact/privity, (2) express assurances. Still may have a duty regardless. PP reasons: don't want to increase liability, limited resources, don't want to choose who to save based on who will sue

Emotional Harm Duty (bystander liability - Dillon test)

there is a duty to the bystander if the injury was foreseeable, i.e., (1) near the accident, (2) direct sensory observation, or (3) relationship to the victim. Parents/spouse/children/siblings are all considered on a case by case basis.

Nonfeasance (instrumentality under D's control)

there is an obligation to take affirmative steps to rescue a person who is helpless and in a situation of peril if the peril was created by an instrumentality under D's control

Nonfeasance (Statute creating explicit duty)

there may be a duty to act if a statute creates an explicit duty

Landowner duty to protect against dangerous condition on land

two methods (1) trichotomy and (2) rowland factors (broadened approach)

Landowner duty, dangerous conditions (Rowland)

whenever one person is by circumstances placed in such a position with regard to another that if he did not use ordinary care and skill in his own conduct he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger

Emotional Harm Duty (exposure to physical risk)

zone of danger, was P in the zone at risk? If so, then there may be a duty.