Chapter III Duty

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Chapter III Duty
The prima facie case in negligence Duty Breach
Causation Damages
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Chapter III Duty Landowner Occupier

• The prima facie case in negligence
• Duty
• Landowner / occupier
• 1) For activities or conditions on the land
• 2) For failing to prevent harm by third parties
• Breach
• Causation
• Damages

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Chapter III (D) Duty Landowners and Occupiers

• The two step, classical approach
• When a person is injured on anothers property
  and sues the person who is in possession of the
  property
• Determine the plaintiffs status.
• Determine the precise duty that attaches to an
  entrant with that status.

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Step One Status

• Trespasser Enters without privilege or consent
  (R2dT 329)
• Licensee Enters with privilege created by
  consent or otherwise (R2dT 330)
• Invitee Two categories
• A business visitor Enters for a purpose
  directly or indirectly connected with possessors
  business.
• A public invitee Enters land open to the public
  for a particular purpose

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Step Two Duty for Dangerous Condition of Land

• Liable to invitee if
• You fail to use reasonable care, which means you
  
• knows or by the exercise of reasonable care
  would discover the condition
• shld realize involves an unrsble risk of harm to
  invitees
• should expect they will not discover or realize
  the danger, or will fail to protect themselves
• fails to exercise reasonable care to protect
  them against the danger.

• Liable to licensee if you
• knows / reason to know of condition should
  realize it involves unrsble risk
• should expect that licensee will not discover
• fails to exercise rsble care to make condition
  safe, or to warn of risk
• licensees do not know or have reason to know of
  the condition risk

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Negligence Duty
Restatement (Third) of Torts Proposed Final Draft
No. 1 7. Duty (a) An actor ordinarily has a
duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm. (b) In
exceptional cases, when an articulated
countervailing principle or policy warrants
denying or limiting liability in a particular
class of cases, a court may decide that the
defendant has no duty or that the ordinary duty
of reasonable care requires modification.
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Usually --
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law
General
Question of fact
Specific
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Chapter III Duty The Rowland test
We depart from this fundamental principle only
upon the balancing of a number of
considerations 1) foreseeability of harm to the
plaintiff 2) degree of certainty that the
plaintiff suffered injury 3) closeness of
connection between the defendants conduct and
the injury suffered 4) moral blame attached to
the defendants conduct 5) the policy of
preventing future harm 6) the extent of the
burden to the defendant and consequences to the
community of imposing a duty 7) the
availability, cost, and prevalence of insurance
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Chapter III (D) Duty Landowners and Occupiers
When a person is injured on anothers property
and sues the person who is in possession of the
property The Rowland or Heins approach A
person in possession of land owes a duty to use
reasonable care to protect entrants onto his or
her land. Including trespassers?
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Duty owed to a trespasser (R2dT 333) With some
exceptions, a possessor of land is not liable to
trespassers for physical harm caused by his
failure to exercise reasonable care (a) to
put the land in a condition reasonably safe for
their reception, or (b) to carry on his
activities so as not to endanger them. NARROW
EXCEPTIONS 1) Child trespassers 2)
Known trespasser, limited area, harmed by
activity
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• What makes trespassers different?
• Liberty interest of landowners?
• Wrongdoers?
• Contributorily negligent by definition?
• Assume the risk, because they know there are no
  protections?

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Chapter III Landowners Occupiers The Duty
to Prevent Criminal Acts
Problem Landowners and Occupiers (2) When is
there an obligation to take steps to prevent
crime by a third party? Landlord / Tenant,
injury in common area (Kline v. 1500 Mass
Ave) Business / Patron (Posecai v.
WalMart) University / Student?
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Chapter III Landowners Occupiers The Duty
to Prevent Criminal Acts
Problem Landowners and Occupiers (2) When is
there an obligation to take steps to prevent
crime by a third party? Landlord / Tenant,
injury in common area (Kline v. 1500 Mass
Ave) Business / Patron (Posecai v.
WalMart) University / Student? Factors
vulnerability control economic benefit
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Chapter III Landowners Occupiers The Duty to
Prevent Criminal Acts

• Problem Landowners and Occupiers (2)
• When is there an obligation to take steps to
  prevent crime by a third party?
• What kind of relationships give rise to a duty?
• What triggers the obligation?
• Specific harm rule
• Prior, similar incidents test
• Totality of the circumstances test
• Balancing approach

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Chapter III Landowners Occupiers The Duty to
Prevent Criminal Acts

• Problem Landowners and Occupiers (2)
• When is there an obligation to take steps to
  prevent crime by a third party?
• What kind of relationships give rise to a duty?
• What triggers the obligation?
• Specific harm rule
• Prior, similar incidents test
• Totality of the circumstances test
• Balancing approach

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Chapter III Governmental Entities
Problem Landowners and Occupiers (2) Would
the limited duty rule in Riss apply?
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Chapter III Landowners Occupiers The Duty to
Prevent Criminal Acts
Problem Landowners and Occupiers (2) Would the
limited duty rule in Riss apply? Police assumed
duty direct communication reliance. Weiner
(subway, no duty to prevent assault) OR Lopez
(bus case, rejecting resource arguments
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Chapter III Duty A. Introduction
The prima facie case in negligence Duty
Riss Breach Causation Damages The
Defenses Contributory negligence / comparative
fault Immunities sovereign / governmental
immunity
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Chapter III DutyGovernmental Entities
Municipal and State Liability
Sovereign Immunity Federal Torts Claims Act --
p. 249 California Government Code Section 815
ff.
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Cal. Gov. Code 911.2.  Times for presentment of
claims    A claim relating to a cause of action
for death or for injury to person or to personal
property or growing crops shall be presented as
provided in Article 2 (commencing with Section
915) of this chapter not later than six months
after the accrual of the cause of action. A claim
relating to any other cause of action shall be
presented as provided in Article 2 (commencing
with Section 915) of this chapter not later than
one year after the accrual of the cause of
action.
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Chapter III Duty Review Summary
The prima facie case in negligence Duty Is
there an obligation to use reasonable
care? Breach What does reasonable care
require? Causation Damages
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Chapter III Duty Review Summary
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law, judge decides based on
precedent.
General
Question of fact, jury decides
Specific
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Chapter III Duty Review Summary

• Areas of no duty
• No duty to warn / rescue / protect another
  unless
• Special relationship to injured person
• Undertaking to aid
• Special relationship to person causing harm
• Created risk through
• Affirmative acts
• Negligent misrepresentation
• Negligent entrustment

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Chapter III Duty Review Summary

• Areas of limited duty
• Limited duties of utilities
• Car key cases / special circumstances test
• Limited duty in landowner cases
• For activities or artificial conditions
• For harm threatened by others (crimes on
  property)

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Chapter III Duty Review Summary
The broad themes Explicit invocation of policy
to limit liability Tug of war between judge and
jury
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Chapter III Duty The Rowland test
We depart from this fundamental principle only
upon the balancing of a number of
considerations 1) foreseeability of harm to the
plaintiff 2) degree of certainty that the
plaintiff suffered injury 3) closeness of
connection between the defendants conduct and
the injury suffered 4) moral blame attached to
the defendants conduct 5) the policy of
preventing future harm 6) the extent of the
burden to the defendant and consequences to the
community of imposing a duty 7) the
availability, cost, and prevalence of insurance
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Chapter III Duty The Rowland test 1

• foreseeability For
• certainty Certain
• 3) closeness of connection Close
• 4) moral blame Morals
• 5) preventing future harm Prevent the future
• 6) Burden Burden of
• 7) insurance of Insurance

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Chapter III Duty The Rowland test 2

• foreseeability F
• Degree of certainty C
• 3) closeness of connection C
• 4) moral blame Must
• 5) preventing future harm Please
• 6) Burden Broadcast
• 7) insurance of Industry

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Chapter III Duty The Rowland test 3

• Degree of certainty California
• closeness of connection Court
• foreseeability Factors
• moral blame May
• insurance of Impose
• preventing future harm Personal
• Burden Burden

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Chapter III Duty The Rowland test 4

• foreseeability Fraternity
• Degree of certainty Drinking can
• 3) closeness of connection Create overstated
  cuteness
• 4) moral blame Many Budweisers
• 5) preventing future harm Promise Future
  Hotness
• 6) Burden By
• 7) insurance of Intoxication

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Chapter III Duty The Rowland test 5

• moral blame My
• foreseeability Flamboyant
• Degree of certainty College
• preventing future harm Professor
• insurance Imitates
• closeness of connection Cher
• Burden Beautifully

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Assignment
Thursday 282-297 (297-301 suggested, but
not required) Thursday 341-349, 358 n.5 n.7
(Skip Zuchowitz, p. 349)