1. SPECIAL NEGLIGENCE ACTIONS Chapter 3

2. PREMISES LIABILITY What is an owner or an occupiers liability for injuries that occur while a person is on their property? 1Trespasser (person wrongfully on land) = no duty, with exception for trespassing children. Licensee (person with express or implied permission to 2 Licensee (person with express or implied permission to be on land) = duty of reasonable care which requires correcting known dangers on the land. Invitee (business guest) = duty of reasonable care which 3 Invitee (business guest) = duty of reasonable care which requires repairing defects he knows or should know of and discovering/correcting unknown dangers.

3. STATUS EXAMPLES You invite your friends over to watch the game – what is their status? You invite your friends over to watch the game – what is their status? –What about your duty regarding the open trench in your back yard? –What about the sink hole about to swallow your car? –What about the open wiring in the wall?

4. CALIFORNIA IS DIFFERENT! CALIFORNIA LAW APPLIES TRADITIONAL NEGLIGENCE STANDARDS TO DETERMINE LAND OWNER/OCCUPIER LIABILITY DISCUSSION OF ROWLAND V. CHRISTIANSEN LEGISLATIVE REACTION - CIVIL CODE SECTION 847

5. CALIFORNIA CIVIL CODE SECTION 847 PROVIDES LAND OWNER IMMUNITY FROM LIABILITY FROM ANY PERSON COMMITTING CERTAIN LISTED FELONIES (CURRENTLY 25) (FELONY = 1 YEAR OF JAIL TIME OR MORE.) LESSOR INCLUDED OFFENSES and MISDEMEANORS ALSO PROVIDE LAND OWNER IMMUNITY. Sampling of the list: MURDER, RAPE, ROBBERY, LEWD ACTS, ASSAULT WITH A DEADLY WEAPON, KIDNAPPING, DRUG DEALING, GRAND THEFT.

6. CALIFORNIA PREMISES LIABILITY FIRST – GENERAL NEGLIGENCE ANALYSIS HOW TO ANALYZE CALIFORNIA LAND OWNER LIABILITY SECOND – ANY DEFENSES AVAILABLE TO DEFENDANT * WAS THE PLAINTIFF COMMITTING A CRIME? DUTY TO FORESEEABLE PERSONS BREACH CAUSATION ACTUAL CAUSE FORESEEABLE INJURY DAMAGES

7. STATUS EXAMPLES Late at night, Jo Scum decides he likes the looks of your custom and collectible 1969 Camaro SS, and decides to make a quick dash across your yard, to take it for a ride, and maybe sell it for a quick buck. He jumps over your fence, lands safely, and makes his way quickly towards the car. Unfortunately, youve recently trenched your yard for a new sprinkler system and Jo takes a terrible tumble, breaking his femur in the process. Screaming in agony, he swears hes going to sue you for everything youve got, explaining that he knows the law. You respond to Jo….

8. Status examples Now 8 years old, little Hanna cant hold back any longer. Her neighbor has just erected a lit Windmill that is painted pink and has sparkles all over. Hanna jumps over the fence and runs over to the moving windmill. She is fascinated by the lights, movements, and soft music. After 30 minutes, Hanna decides she needs to head back home, and on her way decides to take a minute or two to jump on the neighbors trampoline. (The trampoline was not visible from her original position in her own yard.) Without warning, the trampoline tears and poor little Hanna falls to the ground injuring herself. Hannas parents wish to recover for her injuries. Please advise.

9. Vicarious Liability Where someone is held legally accountable for the negligence of another person acting on his or her behalf, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it.

10. Vicarious Liability of Employers Respondeat Superior (let the master answer): an employer is responsible for most harm caused by an employee acting within the course and scope of employment. a)Coming and going rule b)Frolic and detour rule c)Independent contractors

11. Coming and Going Rule Employers not usually held liable for employees traveling to and from work. Exception – if employee is performing work-related activities while coming or going from work.

12. Frolic and Detour Rule An employee making a MINOR deviation from business for personal purposes is still acting within the scope of work. If the deviation is SUBSTANTIAL, the employer is not responsible.

13. Independent Contractor Generally, an IC is someone who acts according to a contract. The IC controls how they accomplish the job. Employer is not held liable for ICs negligent acts. Two broad exceptions: IC engaged in inherently dangerous activities – i.e. blasting. The duty engaged in by IC is simply nondelegable – i.e. putting up a fence around a construction site.

14. Motor Vehicle Vicarious Liability The general rule is that an auto owner is not vicariously liable for the tortious conduct of another person driving their auto. BUT WAIT – THERE ARE EXCEPTIONS!

15. Family Car Doctrine

16. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED) (1)Outrageous conduct by the defendant (2)that the defendant should have anticipated would produce (3)significant and reasonably foreseeable emotional injuries to a victim, (4) thus, breaching a duty of reasonable care to avoid causing such emotional harm to, (5) a reasonably foreseeable victim.

17. CALIFORNIA IS DIFFERENT! NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS The elements of a claim of negligent infliction of emotional distress are: 1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;negligent 2. The plaintiff suffered serious emotional distress; 3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.willful

18. *Serious emotional distress = an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances. CAUSES OF NERVOUS SHOCK A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril. CALIFORNIA NIED CONTINUED …

19. CALIFORNIA REQUIRES THAT A BYSTANDER BE RELATED TO THE INJURED PARTY TO RECOVER FOR EMOTIONAL DISTRESS. DILLON v. LEGG, 68 Cal.2d 728 CALIFORNIA LAW STRESSES THE FORESEEABILITY ASPECT OF NEGLIGENT ACTS.

20. NEGLIGENCE PER SE Behavior or conduct that is presumed negligent as a matter of law because it violated a statute or ordinance.

21. DEFENSES TO NEGLIGENCE 1.Contributory Negligence - At common law = defendant out of luck, modern view favors comparative analysis. 2.Last Clear Chance - Essentially Plaintiffs rebuttal to the defense of contributory negligence 4.COMPARATIVE NEGLIGENCE - Apportionment of fault – offsets ones own negligence against another 3.ASSUMPTION OF RISK 1 – Voluntary assumption of a known risk 2 – A full appreciation of the danger involved in facing the risk 5.STATUTE OF LIMITATIONS