How do we reconcile the tort of negligence with the concept of negligence?

Landowners & Occupiers

Carter v. Kennedy

Traditional View

Traditional View

Traditional View

Duties Owed — Traditional View

Trespasser

• duty not to intentionally or wantonly cause injury
• no duty of reasonable care (with handful of exceptions)

Licensee

• no duty to inspect or discover dangerous conditions
• duty to warn or make known conditions safe

Invitee

• duty to inspect and discover dangerous conditions
• duty to warn or make conditions safe

Heins v. Webster County

Modern View

Modern View

Duties Owed — Modern View

Trespasser¹

• duty not to intentionally or wantonly cause injury
• no duty of reasonable care (with handful of exceptions)

Everybody Else

• duty of reasonable care

Traditional View

vs.

Modern View

Heins Dissent Hypo

A plaintiff was playing on an outdoor asphalt YMCA basketball court, fell, and was injured. The plaintiff was not a member of the YMCA and did not pay dues to the YMCA. Following the traditional view, the plaintiff was a licensee and the trial court’s directed verdict for the defendant was affirmed on appeal. Following the Heins majority, the YMCA will be subject to lawsuits holding them to a duty to treat uninvited users of their facilities with the same standard of care as the paying members of their institutions.

The majority opinion “socializes the use of privately owned property.” “From this moment on, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.”

Writing for the majority, how would you respond?

Sample Exam Question

You are a trial court judge in the state of Loyola. The facts of a case before you are as follows. A patient had been diagnosed as legally blind and had stopped driving as a result. At a routine eye appointment, the patient’s optometrist told him that his vision had improved enough for him to drive again. The patient resumed driving and shortly thereafter crashed into a horse-drawn hay trailer, killing one passenger and injuring the other four.

The passengers have sued the optometrist, claiming medical malpractice. The optometrist has moved for summary judgment on the grounds that she had no duty to the plaintiffs.

How would you rule on the motion? Include your reasoning. You should be aware that the Supreme Court of Loyola recently adopted the holding and reasoning of the Tarasoff opinion regarding a psychiatrist’s duty to third parties.