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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Tuesday, March 2, 2010

3 - Torts - Negligence - Duty (Part 2)

Negligence – Duty (Part Two)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Previously, on Negligence … Oh, wait. That’s 24.

We talked last time about misfeasance and nonfeasance. Now we’ll look at some special duty situations.

1. Duty to rescue: The duty to rescue is a matter of nonfeasance so the general, common law rule will apply. That rule is that there is no duty to act – no duty to rescue. The exceptions to this rule are (1) situations of special relationship between the potential actor and the person in peril, (2) where the potential actor undertakes to act, (3) where the potential actor caused the peril, (4) where the potential actor caused the person in peril to rely on a gratuitous promise or (5) where there is a contractual duty to act on the part of the potential actor.

2. Duty to control (the actions of another person): Once again, there is no duty to act, except in cases of a special relationship. In those cases, for instance, where a psychologist has a client who s/he knows, or based on professional standards, should know someone is at serious risk or serious harm, the psychologist must take reasonable steps to protect a known or potential third party. Of course, this is a general principle and may not apply in every state. The laws of many states create a duty to act on the part of a supplier of liquor and most states also have some sort of negligent entrustment laws or theories – where one knows or has reason to know that one is a bad driver, he nonetheless allows that person to drive his car. In those cases, there may well be a duty to act affirmatively to control someone else’s conduct.

3. Duty to protect: Once again, there is no duty, generally, to act to protect someone else unless there is a special relationship, such as landlord/tenant, business/patron or police/citizen.

4.  Greater Knowledge of Skill:  Where defendant had increased knowledge or skill (greater than the average or reasonable person), the general standard of care will be increased - for instance, the relationship between doctor/patient or attorney/client.

5. Land Occupier: Here we are talking about a land occupier’s (an owner or a tenant) duty to act to protect a licensee, invitee or trespasser. The key is the status of the person who enters the land occupied by another.

    a. Licensee: A licensee is one who enters the land of another with express or implied consent of the land occupier. Here, the only obligation is to warn the licensee of concealed, artificial or natural dangers on the property that are known to the land occupier. In some cases, a warning must be given, but only regarding hidden dangers that are known to the land occupier. The general rule is that there is no obligation on the part of the land occupier to inspect the land to uncover a defect.

Where a land occupier knows of a dangerous condition on the property and fails to cure the condition or fails to warn the licensee about the risk, a land occupier may be liable to a licensee injured by a condition on the land if the licensee does not know about the danger nor would be expected to discover the dangerous condition.

On the other hand, there is a duty to refrain from willful reckless conduct and if the land occupier discovers a licensee on the property who is in a position of peril, then the land occupier has a duty to use reasonable care.

Social guests, like someone who you invite over for dinner, are usually licensees.

    b. Trespasser: One who enters or remains on the property in the possession of another without permission (express or implied) of the land occupier.

The duty owed to trespassers is very limited: There is a duty to refrain from willful reckless conduct and if land occupier knew or should have known that the plaintiff is present (or if the plaintiff is discovered by the land occupier to be in a position of peril, and failed to exercise reasonable care) then the landowner has a duty to use reasonable care.

     c. Invitee: An invitee is a licensee who is on the premises for the potential financial benefit of the land occupier (business invitee) or on land held open to the public at large (public invitee). An invitee is one who is not only invited, but also stays within the scope of the invitation.

The landowner owes to an invitee a general duty to use reasonable care and a duty to discover and avoid the danger.

California Law:

A person on the land of another is owed a duty of reasonable care. (Rowland v. Christian). California is one of a handful of states that has applied the general duty irrespective of the status of the person upon in the land.

      d. A Tenant: A tenant owes a duty of reasonable care to inspect and repair since the repair person is an invitee.

Why isn’t the landlord liable? The landlord is a landowner, but not a land occupier. Between the tenant and the landlord, duties owed to invitees/licensees/known trespassers are owed by the land occupier, not by the landlord who is renting out the premises. Unless: The landlord owes a duty of care for hidden defects in the premises. (For example, if loose shingle is not apparent, or where the landlord has affirmatively acted, but negligently repaired.

     e. Common Carrier: Common carriers are bus companies, airlines, passenger railroads, shuttle services--those who transport people for hire. They owe a duty of “highest care.”

A guest statute precludes guests in a car from holding the driver liable for injuries resulting from the negligence of the driver (that's a lower duty of care that usual). They are in an extreme minority today. Nearly all states allow passengers to sue drivers.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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