What is the role of negligence torts in our society?

What beliefs does it steam from?

It’s the closest thing we have in our society of a general principle of tort liability and it steams from our social belief that all peeps in a society should conduct themselves in a certain way. We are supponsed to conduct ourselves so as not to creates unreasonable harm to our neighbors.

Negligence has two meanings:

1) the name of a tort cause of action and is a huge cause of action. The levels of negligence in tort are countelss.

2) Describes a form of wrongful conduct that is an element of various tort causes of actions  or defenses including  the action of that name

Not Creating an unreasonable risk of harm to others is not always achievable. (i.e. a car accident). It maybe accident but is due to some one’s negliglence.

1) A duty is owed by d to p and it is a general ordinary duty of care

   2) A breach of that duty by the d's failure to conform to the required standard of conduct.

3) There is a sufficient casual connection between the negligenct conduct and the resulting harm

4)    Actual loss or damage that is recognized by the courts.

Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

Is there any element of intent in negligence?

Does this mean the defendent's state of mind is irrelevant?

if one’s conduct creates an unreasonable risk of harm, he can be held negligent even if his state of mind was anxious concern for the safety of others. In otherwords there is no element of intent.

This is not to suggest that actor’s state of mind is completely irrelevenat. What he can be held liable for is based on what he knew or what he should havek known.

I.e. should he have known or did he know that the steering in his car was deficient.

Should he have known that doing something was dangerous

Does it matter in negligence torts if the actor thought his actions were reasonable?

What is this based on?

The ultimate issue is the reaonsableness of his conduct, not the reasonableness of his belief that he was acting with appropriate care.

This is based on what a reaonsable person would think, not what the d thought was reaonsable.

If the d’s conduct does not subject the p to unreaonsable risk, the d will not be held negligent.

What test is used to determine if a defendant's actions are reasonable?

Does the law allow for weaknesses in the actor?

Are all people held to the same standard?

Who sets the standard?

Whther conduct is neg is determined by an objectable test of reasonablness.

The law does not make allowances for any weakness of the actor (i.e. foregetfull, rash, etc.).

All people are held to the same general standard of reasonableness whether or not they are capable of meeting it. IT is a standard that society sets, not the ividual

Who is this reasonably/ordinarily prudent person?

How does this relate to the community?

Ordinalrily prudent person is not typical or average and are idealized by the law and are a composite person of the community who is completely fictious. A typle community member and and how that person ought to act.

So the test is not what the majority or respectable person does because that could fall below the comunity Standard of safety. The unreaonsable person is not unfallible and not imperefect they are permitted mistakes in judgement .

Such a person is “human” but they must be “reasonable” and must be done with the exercise of reasonable care.

Reaonsable person = ideal person in a particular community

gen. duty of care is to act as an ordinary, prudent and reasonable person to another person. The generally rule of foreseeablility applies. A general care of duty is owed only to foreseeable plantiffs.

The railroad case was seminal and established the concept of foreseeability. The cardozo view, the second plaintiff can only establish that the plaintiff can establish whitn the zone of danger then that plaintiff will not recover.

Judge Andrews dissented saying that the second plainttif if could establish a  duty that the d owed to anyone, then she can recover.

def breaches duty to Pl and causes injury to p2, too, to whom foresseable duty might/might have been created at the time.

When determining the reasonablness of care, are the physical considerations of the actor taken into consideration?

What about the mental conditions of the actor?

Reasonable person and  the physical characteristics of actor are taken into consideration the mental characteristics are not. 

On what kinds of activity is duty of care imposed on?

This duty of care is imposed in all activity

How is the basic standard of care judged?

How does duty relate to foresseability?

It is judged by the reasonable person standard. It is presumed that the person will act within this starndrad

It is no duty of any person to take care for no foreseeable injury (or one that cannot be foreseen so the the injury must be foreseen.

Is it assumed that the reasonable person has different characteristics than the defendant?

Does the reasonable person have average mental ability?

Are mental handicaps considered?

No, Reasonable person is considered to have same physical characteristics as defendant. Reasonable person has average mental ability. So a person with below average intelligence will be held to what is average for the mental ability.

Individual mental handicaps are not considered. (but you could be deemed as not having competence.)

Special Standard of Care- Professionals

What kind of judgement and skill are they required to use?

How do specialists get consent?

Do higher level of specialists have a higher standard of care?

they have special skills and knowledge are required to possess the skills and knowledge of any person of that standing in that community would do. This would include people who have an education or skill in a particular trade. (Like plumbers)

They are required to use superior judgment skill and the knowledge that they possess and a specialist is held at an even higher level than that so a cardiologist even higher than a gp. Professionals have higher duty to disclose facts that the ordinary person would not necessarily have at their convenience.

They. Dr.’s must sufficiently educate a patient to allow the patient to make an educated decision when they consent.

Children and the standard of care

Below what age do children not have a standard of care?

What standard of care are children who engage in adult activites held to? 

 also are held in the majority of courts are view as having a particular standard of conduct. Are required to conform to the standard of care for a child of like age, intelligence, age, experience, and mental ability. This means there is a subjective interpretation and not an objective one. In a majoirty of courts children have to be at a certain age to know that their behavior is held to a certain standard.

In most cases children under the age of four are not capable of committing negligence, they do not have the capacity to be negligent because they do not understand they have a duty to other persons or posing a risk to those around them.

Children who are engaged in adult activities that normally only adults engage in, they will be required to conform to the same standard of care as any adult (i.e. flying an airplane, shooting a gun, or driving a car or boat).

people who drive buses, peeps who are airline pilots and they will be liable to the slightest negligence. Innkeeps (peeps who mange hotels) will be held to the slightest amount of negligence. They are held to a much higher standard than the average person.

It is more intense and more difficult to prove that specialists are negligent b/c they have a higher standard of care.

     auto driver and guest- typically when there is a rider in the car, it is an ordinary standard of car, but a few states have guest statutes in which the driver’s only duty in reference to the non-pay9ing rider is to refrained from gross or wonton and willful misconduct. All other states hold the driver to an ordinary duty of care.

How is the duty of care for possesors of property to those off of the property determined? 

Examples?

Duty of care for those who posses the property to those who are off the premises has to do with natural or artificial conditions

If the landowner owes no duty to protect someone outside the premises from natural conditions on the land. So your neighbor is not liable for the bugs that live in their tree and visit your vegetation, animals, kids, or your property. This is considered a natural condition so the neighbor owes no duty to protect your kids on your land.

No duty for artificial conditions except those that are unreasonably dangerous, artificial condition.

i.e. if sump pump puts ice on sidewalk and then you are responsible for the artificial condition created by the owner. And you do owe a duty to other people

 a person is liable for tree next to sidewalks along to streets that are decaying. So you have a duty to protect your neighbor from protecting neighbor from tree but you have no duty to protect them from termites. If there is no evidence that the tree was decaying, you have no obligation to protect neighbors from them but if there are no needles on tree for three years, then you are liable.

Duty is limited to the adjoining or abutting land. There is a duty to protect passersby’s with regards to artificial conditions. Have to provide some sort of safe passage if you are blocking the street.

a trespasser is one who comes onto the land without permission or privilege.

What are a landowner's duties with regards to an undsicovered tresspasser?

What about to a discovered tresspasser?

There is no duty owed to an undiscovered trespasser. Landowner owns no duty to inspect to ascertain if people are coming onto his property. However, once the landowner discovers the presence of trespasser, he is under a duty of care to warn or make safe the unnatural condition that would result in death

What is the attractice nuisance doctrine?

What must the plaintiff show to have a successful claim under the attractive nuisance doctrine?

If this is a higher or lower standard of care?

An attractive nuisance doctrine imposes on landowners to avoid reasonable risk of harm caused by children on the property. This is a special duty on landowner with regard to children trespassing will stand if the p can show:

1) that there is a dangerous condition present that the owner knows about or should know about that the owner should or should know that young people frequent the vicinity of this condition and

2) that the child will not know that the condition is dangerous and

3) that the cost of remedying the situation is less than the risk.

This is a higher standard. The plaintiff must show that all of these things existed that

1.     This was an artificial condition that the landowner should know or did know would attract young people and 
2. that it would be dangerous for them and
3.  so if the land owner can remedy the situation for an unnatural condition for less than the cost of the danger, they must remedy

Yes, FOR ATTRACTIVE NUISANCE THERE HAS TO BE A FOREESABILITY OF HARM. THE FORESSEABILITY OF THE HARM TO THE CHILD IS THE BASIS OF THE LIABILOITY

Anticipated trespassers are similar to those discovered and should be treated as such if the owner has reason to anticipate that there will be trespasser through the land. It is owned to the trespasser as if they are a discovered trespasser so they have a duty to warn the anticipated trespasser.

Who is a Licesensee?

Are social guests licensees?

Licensee is one who enters on the land with the possessor’s permission of, express or implied for her own purpose or business rather than the possessor’s benefit.

Social guests are considered licensees

What is the duty of a landowner/occupier to licensees?

(example)

What does the owner/occupier NOT have a duty to do?

What about a licensee the owner/occupier knows is on the land.

The owner of the land or the occupier has the duty to warn the licensee of the dangerous condition known to you that creates a reasonable risk of harm to them and that the licensee is not likely to discover.

So if you know that a step on the porch is rotted, you must warn the licensee

The owner or licensee has no duty to inspect for defects no to repair for known defects.

There is only a duty to warn the licensee of known danger.

The owner and occupier also has a duty to exercise reasonable care in the conduct of active operations in protection of the licensee who he knows to be on the property.

invitee is someone who enters on to premises in response to the implied or express invitations of the landowner

1) someone who enters into the land  (those who enter the land as a member of the public when the land is held open to the public... i.e. museum, church, etc.).

1)    Those who enter to the land in order to do business for the landowner (like plumbers postal service, ect.)

What is the duty of a landowner/possessor to an invitee?

Is this a higher standard than a licensee?

The possessor of the land to the invitee owes them a duty to keep the land reasonably safe for the benefit of the invitee

With regards to invitees, this includes the duty to licensees plus as duty to make reasonable inspections to discover dangerous conditions and then make them safe.

So for invitees there is a higher standard. The duty to make safe of dangerous conditions will usually be satisfied with a sign warning the invitee

lessee has duty to main premise to avoid unreasonable risk of harm to others.

Liability on reality is generally on whom is in possession of the land so the tenant of the property is burdened with a duty

1)    with the effect of the lessor’s promise to repair. If in lease the lessor has coveted to make repairs and reserves right to enter property to inspect and make repairs, then he is liable for dangersou conditions. The lesee is not liable.

2) duty of lessor to lesse: duty to warn of existing defects of which the lessor is aware or should have reason to know and for which the lesee would not normally discover

3) If the lessor is under no obligations to make repairs but does so anyways, he is liable if he does so negligently.

Do you generally have an affirmative duty to act?

exampl

no, no legal duty to affirmatively act for the benefit of others. Person who gratuitously acts for the benefit of the other but then inverses this duty and must act as a reasonable person and must continue the assistance.

So if moved passed out drunk guest and they then asphyxiate on their own vomit after you move them, then you are liable b/c you moved them.

some will not hold dr.’s nurses who intervene liable but some also hold nonlicnesed personnel liable for failure to act. But does not cover gross negligence for dr.’s nurses or nonlicensed personnel

Peril due to defendant’s negligence

Special relationship between parties

Common carriers are obligated by law to aid or assist passengers

Duty of public accommodation (i.e. innkeepers or restaurateurs to aid or assist guest from injuries caused by third parties