Torts II Outline
Duty Standards – Common Carriers, Landowners, Host Drivers and Guest Statutes.
Common Carriers (Highest Degree of Care)
– Duty is to not be ”willful or wanton”. Older theory, which no longer is applicable. It is the reckless conscious disregard of safety of others and defendant knows or has reason to know that it creates an unreasonable risk of harm and that harm will probably result.
– Negligent conduct merely creates an unreasonable risk no awareness of that risk vs. intentional torts, which conduct is intentional and harm will be certain. Reckless is not certain.
– Wanton is an act or failure to act when there is a duty to do so. Reckless disregard with knowledge that injury will probably result.
– Willful is intentional and reckless (conscious) disregard of a legal duty and of the consequences to the other party.
– Both willful and wanton is same as gross negligence. It can be a bad state of mind.
– Gov’t was running the common carriers so they didn’t want to be held liable. The standards back then were very pro common carrier – very pro defendant.
– Speed is not gross neg. or willful, but speed w/knowledge of a dangerous curve ahead is.
– Carrier’s duty of care must be exercised in foreseeing as well as guarding against danger. A higher level of care than what might be considered reasonable. (called slight negligence)
Landowners Duties: Trespasser-none, Licensee-warn, Invitee-Inspect & Repair.
Duty of care depends on nature of dangerous condition, whether it is artificial or natural, and the status of the person injured on the land (trespasser, licensee, invitee). The entrant’s status generally determines the landowner’s duty to him.
– No strict liability here, fault must be proven, but the trend is towards a reasonable person standard of care for land ownership. Applies to possessor of land, not just landowner.
– NY uses reasonable care (by statute) when you are charging a fee for entrance.
– Defendant must take reasonable measures and exercise reasonable care to see that activities and possessor created conditions prevent injury to those whose presence can be reasonably foreseen.
– If someone sneaks onto property it might not be foreseeable.
– Goes through regular negligence analysis, for ex. – could show that no more could have been done to protect property or that Plaintiff’s presence was not foreseeable.
– Invitee is someone who enters land by express or implied invitation to conduct business with the owner (benefits owner) or enters for purposes for which land is held open to the public. (public invitee) Entrant expects land to be made safe, so landowner’s duty is to make safe, to warn, and to inspect. You have a duty to discover dangerous conditions. Store customers, postmen, and garbage men, IC’s.
– Invitees are people you wish to be on your land, entitled to reasonable and ordinary care from landowner, and may only require a warning, but it may require more to make the premises safe like when the invitee is distracted and unable to protect himself even when he knows of the danger.
– You can lose your status if you stay on land too long, then you become a trespasser or a licensee depending upon other party’s consent.
– Invitees owed duty of ordinary care, but not if danger is open and obvious and there is a duty of reasonable care if danger is foreseeable that someone would be injured despite open and obvious condition-K Mart example. This essentially amounts to Assumption of Risk. A regular negligence analysis ensues along with contributory negligence. This is an extra layer of protection for the defendant and for the Plaintiff to prove. Duty is non-delegable.
– Restatement. Landowner not liable to invitees for physical harm for known dangerous activities u
on’t have to attract or inspect.). You know condition (not activity) will cause unreasonable risk of harm. Child will not be able to understand or protect themselves because of age. Risk of injury must outweigh cost. And you fail to exercise reasonable care to eliminate danger or protect.
Reasonable care standard – if trespass by kids is foreseeable and land owner knows of danger, and kids can’t protect themselves because of age, then your liable.
-If child is attracted by one instrument and injured by another, landowner will be liable.
-if child knows of danger, and understands it, and can avoid it, then landowner only owes a duty the same as an adult.
-normally applies to artificial dangers, not natural/obvious like a pond on your property.
– Open and Obvious are questions for the jury. If danger is obvious, Plaintiff will lose.
– No duty for snow and ice with invitees.
– Duty to persons outside land is ordinary care to not create a risk and you do not have to inspect for hidden dangers resulting from natural conditions like trees, unless you did something to the tree to create a risk or if you let rotted limbs hang on the sidewalk, or if you engage in activities that pose a risk to outsiders.
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Firefighter Rule (Publicly employed rescuers)
Standard of care for firefighters putting out your fire is similar to licensees. Only duty is to warn, if there is enough time permitted, of known dangers that create unreasonable risk of harm and which are unlikely to be discovered by him.
