Torts: Negligence-Duty of Care

to prove the availability of the statutory standard, a plaintiff must show that:

1)He is in the class intended to be protected by the statute; 2) The statute was designed to prevent the type of injury that he suffered; and 3)The standards set out in the statute are clearly defined, i.e., the statute is clear as to what standard of conduct is expected, where and when it is expected, and of whom it is expected.

bailment

A bailee's slight negligence may give rise to liability only in a bailment for the sole benefit of the bailee. If the bailment is for the sole benefit of the bailee, as when the bailor gratuitously loans her lawnmower to the bailee, then the bailee is liable even for slight negligence. A bailee cannot be liable for slight negligence in a bailment for the sole benefit of the bailor. If the bailment is for the sole benefit of the bailor, as when the bailor asks his neighbor to get the bailor's mail while on vacation, then the bailee is liable only for gross negligence. Also, a bailee cannot be liable for slight negligence in a mutual benefit bailment. If the bailment is for the mutual benefit of the bailor and bailee, the bailee is liable for failure to exercise ordinary due care; slight negligence does not suffice.

dangerous condition

A dangerous condition exists when something on land is likely to cause injury to children because of their inability to appreciate the risk. This usually is an artificial condition, but in some circumstances a natural condition might suffice.

A pedestrian walking on the edge of the landowner's property adjacent to a sidewalk who falls into an unprotected excavation.

A landowner may be liable to a pedestrian who falls into an unprotected excavation adjacent to a sidewalk. The general rule is that a landowner owes no duty to protect persons outside the premises by making dangerous artificial conditions on the premises safe. However, he does owe a duty as to unreasonably dangerous artificial conditions or structures abutting adjacent land. This duty extends to passersby who may stray onto the edge of the landowner's property.

discovered and anticipated tresspassers

A landowner owes a duty to discovered and anticipated trespassers to exercise ordinary care to warn of or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. There is no duty owed for natural conditions, even if they involve a risk of death or serious bodily harm or less dangerous artificial conditions. Hence, it is incorrect to state that the landowner has a duty to warn the trespasser of ANY conditions that involve a risk of death or serious bodily harm. If a landowner posts "no trespassing" signs it might serve to convert "anticipated" trespassers into "undiscovered" trespassers, but a trespasser who is actually discovered on the land is owed a duty as to dangerous artificial conditions

Which of the following is correct as to the duties of a lessor of realty?

A lessor is subject to liability for unreasonably dangerous conditions if he has covenanted to make repairs and reserves the right to enter the leased premises. it is not correct that the lessor is obligated to warn a lessee only of defects in the premises of which the lessor is aware. The lessor is obligated to give warning to the lessee of existing defects in the premises not only of which the lessor is aware, but also of which he has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection. Furthermore, if the lessor attempts to repair a dangerous condition even though not obligated to do so, he MAY be liable for doing so negligently even if he did not make the condition worse.

lessee

A lessor owes no duty to a lessee as to unreasonably dangerous conditions of which the lessee is or should be aware. Explanation A lessor owes no duty to a lessee as to unreasonably dangerous conditions of which the lessee is or should be aware. The lessor's duty applies only to concealed conditions of which the lessor knows or has reason to know, and of which he knows the lessee is not likely to discover on reasonable inspection. A lessor's duty to members of the public as to unreasonably dangerous conditions does not end when the premises is transferred to the lessee. The lessor's responsibility continues until the lessee should have, in the exercise of reasonable care in inspection and maintenance, discovered and remedied the defect. If a lessor, though under no obligation to do so, voluntarily makes repairs, he is liable if he does so negligently, failing to cure the defect; it is not necessary that his negligent repairs make the condition worse. A lessor's duty to repair dangerous conditions on the premises does not relieve the tenant, as occupier of the land, of liability for injuries to third persons from the dangerous conditions within the tenant's control. Liability for conditions on the leased premises hinges on who occupies and controls the premises Explanation With regard to the duties of a lessor of realty, liability for conditions on the leased premises hinges on who occupies and controls the premises. Thus, when the owner leases the entire premises, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. A lessor CAN pass the burden of maintaining the premises onto the lessee, and he does so when the lessee leases the entire premises. Hence, it is not true that a lessor leasing the entire premises ordinarily remains jointly liable with the lessee for dangerous conditions. Although exceptions exist, the general rule is that liability is passed solely to the lessee when the lessor leases the entire premises.

When a statutory standard of care replaces the common law duty of care in a negligence case, the defendant's compliance with the statute will be excused if:

A violation of an applicable statute may be excused if: (i) compliance with the statute would cause more danger than a violation (e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or (ii) compliance with the statute would be beyond the defendant's control (e.g., a blind pedestrian crosses against a light).

Invitee

An invitee may lose that status if she exceeds the scope of her invitation. A person loses her status as an invitee if she exceeds the scope of the invitation, such as if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. A firefighter engaged in fighting a fire on the landowner's premises is NOT an invitee. Under the "firefighter's rule," police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A landowner DOES owe an invitee a duty to make inspections. The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious dangers known to the landowner and to use ordinary care in active operations on the property), plus a duty to make reasonable inspections to discover dangerous conditions and make them safe. However, the duty to "make safe" does not require that the landowner must repair dangerous conditions to satisfy his duty to invitees. Depending on the nature of the danger, it is usually sufficient if a reasonable warning has been given.

who is an invitee?

Correct Answer A child accompanying a customer of the landowner. Explanation A child accompanying a customer of the landowner is considered an invitee because she came onto the property for a purpose connected to the business. A landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property). A landowner also owes invitees a duty to make reasonable inspections to discover dangerous conditions and make them safe. A customer of the landowner who goes through a door marked "employees only" is no longer an invitee. A person loses his status as an invitee if he exceeds the scope of the invitation—if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. A firefighter fighting a fire on the landowner's property is not treated like an invitee. Under the "firefighter's rule," police officers and firefighters are generally treated like licensees, based on public policy or assumption of risk grounds. They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A hiker on the landowner's open land is not considered an invitee. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

If a condition on a landowner's property creates a danger to those off the premises:

If a condition on a landowner's property creates a danger to those off the premises, he owes a duty to passersby to take due precautions to protect those persons from unreasonably dangerous artificial conditions on the land. A landowner's duty does NOT apply to natural conditions to the same extent as artificial conditions. Except for decaying trees in urban areas, a landowner owes no duty to protect one outside his premises from natural conditions on the land. A landowner's duty to those off the premises also does NOT depend on the legal status of the person. While the duty of a landowner to those who enter onto the landowner's property depends on the entrant's legal status, those rules do not apply to those injured outside the premises, who may be owed a duty regardless of their status.

pregnancy

In most states, an unwanted child's suit for "wrongful life" after the defendant fails to diagnose a congenital defect of the fetus is not actionable. The failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for "wrongful life," even if the child is born with a handicap. The child's parents' suit for "wrongful birth" after the defendant fails to diagnose a congenital defect of the fetus is actionable in most states. The child's parents' suit for "wrongful pregnancy" after the defendant fails to properly perform a contraceptive procedure is actionable in most states. The child's mother's suit for an unwanted labor after the defendant fails to properly perform a contraceptive procedure is actionable. The mother can recover damages for the unwanted labor (medical expenses and pain and suffering).

dangerous condition and P's burden to prove

The plaintiff does need to establish that the landowner knew or should have known that young persons frequent the vicinity of the dangerous condition. The plaintiff must also establish that the expense of remedying the situation was slight compared with the magnitude of the risk. Finally, the plaintiff must show that the dangerous condition was likely to cause injury because of a child's inability to appreciate the risk.

Which of the following duties is owed by an owner or occupier of land at common law?

To warn a licensee of a dangerous condition known to him that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.

A bystander who witnesses the defendant negligently injuring another can recover for negligent infliction of emotional distress in most states by showing:

a close relationship between the bystander and the person injured, the bystander's presence at the scene of the injury, and the bystander's observation or perception of the event. The bystander's presence within the zone of danger from physical injury is no longer required for a bystander to recover for witnessing an injury to another.

A duty of care is generally not owed to __________.

a rescuer, unless the defendant negligently put herself or a third person in peril A rescuer is a foreseeable plaintiff and is owed a duty of care as long as the rescue is not wanton, but only if the defendant negligently put herself or a third person in peril. However, firefighters and police officers may be barred by the "firefighter's rule" from recovering for injuries caused by the risks of a rescue.

licensee

in response to a dinner invitation from the landowner Explanation One who enters land in response to a dinner invitation from the landowner does not qualify as an invitee; social guests are treated as licensees. A licensee is one who enters on land with the landowner's permission, express or implied, for her own purpose or business, rather than for the landowner's benefit. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. There are two classes of invitees: (i) one who enters land for a purpose for which the land is held open to the public, e.g., to view an exhibition at the landowner's public art gallery; and (ii) one who enters land for a purpose connected with the business of the landowner, e.g., in response to a sale at the landowner's shopping mall.