How to Analyze Negligence on a Torts Essay (Pt. 3): Alternative Standards of Care (Landowners)

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How to Analyze Negligence on a Torts Essay (Pt. 3): Alternative Standards of Care (Landowners)

NEGLIGENCE

To hold a defendant liable for negligence, the plaintiff must establish the following four elements by a preponderance of the evidence: (1) the defendant owed a duty to the plaintiff to conform to a specific standard of care; (2) the defendant breached that duty; (3) the breach was the actual and proximate cause of the plaintiff’s harm; and (4) the plaintiff sustained actual damages or loss.

STANDARD OF CARE (Part 2 of the Duty Analysis)

Once we establish whether the defendant owed a duty of care to the plaintiff (Part 1 of the Duty Analysis: https://youtu.be/R7ygkc6YJI0), the next part of the duty analysis is to determine what standard of care the defendant owed to the plaintiff.

In most cases, the standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under like circumstances as measured by an objective standard (the reasonable person standard of care).

However, the standard of care owed may change when certain types of defendants are involved or a statute defines a specific standard of care as a matter of law (negligence per se).

ALTERNATIVE STANDARDS OF CARE FOR CERTAIN CLASSES OF DEFENDANTS

Traditionally, the standard of care owed by the defendant to the plaintiff is subject to modification if the defendant is: a child, a professional, a physician, a common carrier or innkeeper, an automobile driver, a bailor or bailee, or a possessor or owner of land.

Children: A child owes a duty to exercise the care that a reasonable child of similar age, intelligence, and experience would under like circumstances. However, a child will be held to the same standard of care as an adult if the child is engaged in a high-risk activity that is usually undertaken by adults.

Professionals: A professional owes a duty to exercise the same skill, knowledge, and care of a member of the profession in good standing in similar communities.

Physicians: A physician owes a duty to: (1) conform their conduct to the customary practice of other physicians in like circumstances, as measured by a national standard; and (2) explain the risks of a medical procedure to a patient before the patient decides to consent to treatment. However, a physician is not required to explain the risks of a medical procedure when: the risk is commonly known; the patient is unconscious or otherwise incapable of giving consent; the patient waives or refuses the information; the patient is incompetent; or the explanation of risks would be detrimental to the patient.

Common Carriers & Innkeepers: At common law, most jurisdictions held that common carriers and innkeepers owed the highest standard of care to their customers and guests. Under this heightened standard of care, common carriers and innkeepers could be held liable for “slight negligence” by their customers and guests. Today, most courts continue to hold common carriers to this heightened standard of care. However, most courts do not impose a higher standard of care on innkeepers, instead applying an “ordinary” negligence standard.

Automobile Drivers: In most jurisdictions, an automobile driver owes a duty to conform to a reasonable person standard of care to their guests and passengers (passengers confer an economic benefit to the driver in exchange for the ride). However, in a minority of jurisdictions, an automobile driver only owes a duty to refrain from gross or wanton and willful misconduct to their guests, while still owing a duty to conform to the reasonable person standard of care to their passengers.

Bailors & Bailees: A bailment occurs when a person (the bailee) temporarily takes possession of another person’s (the bailor’s) personal property.

Bailors: A bailor owes a duty to inform an unpaid-bailee only of known dangerous defects in personal property, but must inform a paid-bailee of defects that are known or should have been known by the bailor had he used reasonable diligence.

Bailees: A bailee owes a lower duty of care to avoid gross negligence if the bailor receives the sole benefit from the bailment. However, a bailee owes a very high duty of care to exercise extraordinary care for the bailor’s property if the bailee receives the sole benefit from the bailment.

Landowners: Click here to see FULL descriptions of each standard of care, including possessors and owners of land: https://bit.ly/2p0rybi

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