Negligence - Other special classes

Learning Outcomes

This article explains the special negligence standards of care that apply to particular classes of defendants and how they are tested on the MBE, including:

• Recognizing fact patterns that trigger common carrier, innkeeper, landowner/occupier, professional, child, or physically disabled-defendant standards, and articulating the specific duty each owes to protected plaintiffs.
• Distinguishing among trespassers (including discovered trespassers and child trespassers), licensees, and invitees, and matching each status with the correct scope of inspection, warning, and repair duties.
• Applying the professional standard of care and informed-consent rules to medical and other malpractice-style questions, using expert testimony and “typical member of the profession” language where appropriate.
• Comparing the reasonable child standard with the adult standard used for children engaged in adult activities, and spotting when exam questions silently shift from one to the other.
• Evaluating how physical disability, mental disability, voluntary intoxication, emergencies, and parental or supervisory duties modify (or fail to modify) the ordinary reasonable person standard in MBE fact patterns.
• Integrating these special rules into a structured issue-spotting approach—identifying the parties’ roles, selecting the governing standard of care, and then assessing breach, causation, and damages.

MBE Syllabus

For the MBE, you are required to understand negligence standards of care and duty rules, with a focus on the following syllabus points:

• The heightened duties owed by common carriers and innkeepers to passengers and guests.
• The specific standards of care for landowners and occupiers toward trespassers, licensees, and invitees, including trespassing children.
• The professional standard of care for doctors, lawyers, and other specialists.
• The rules for children and persons with physical disabilities (and the treatment of mental disability and intoxication).
• How these special standards interact with, modify, or replace the general reasonable person test.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is held to the highest standard of care in negligence law for those within the protected class?
   1. Social guest host
   2. Common carrier
   3. Ordinary driver
   4. Trespasser
2. A landowner owes the least duty of care to which of the following?
   1. Invitee
   2. Licensee
   3. Trespasser
   4. Tenant
3. In a medical malpractice case, the applicable standard of care is:
   1. The average reasonable person
   2. The average person in the community
   3. The skill and knowledge of a typical member of the profession
   4. The judge’s personal opinion

Introduction

Negligence law normally evaluates conduct against the reasonable person standard. However, the law recognizes that some defendants cannot be fairly judged by exactly the same measure, either because they have special training or because their role in society creates special risks and responsibilities.

These special classes include common carriers, innkeepers, landowners and occupiers, professionals, children, and persons with physical disabilities. The MBE frequently tests your ability to recognize which standard applies and to avoid reflexively applying the ordinary reasonable person test.

Key Term: Reasonable Person Standard
The baseline negligence standard: the care that an ordinarily prudent person would exercise under the same or similar circumstances.

The exam strategy is always the same:

• First, identify the plaintiff’s status (passenger, guest, trespasser, patient, child, etc.).
• Second, identify the defendant’s category (landowner, professional, parent, common carrier, etc.).
• Third, apply the correct special duty rule instead of or as a modification of the reasonable person standard.

Common Carriers and Innkeepers

Common carriers (such as bus, train, and airline operators) and innkeepers (hotels, motels) are held to a higher standard of care than ordinary persons. They must exercise the utmost care and vigilance for the safety of their passengers or guests.

Key Term: Common Carrier
A business that transports people or goods for hire and is held to the highest standard of care for its passengers.

Key Term: Innkeeper
An operator of a hotel or similar establishment, required to use utmost care for the safety of guests.

Key points for the MBE:

• Who qualifies?
  • Common carriers: buses, subways, railroads, airlines, taxis, and similar “for hire” transport services.
  • Innkeepers: hotels, motels, and similar lodging businesses that hold themselves out to the public.
• Who is protected?
  • Passengers in the process of boarding, riding, or alighting.
  • Guests accepted as lodgers on the premises.
• Standard of care:
  • Traditionally described as “utmost” or “highest” care consistent with the practical operation of the business.
  • They must protect against foreseeable harms, including those caused by third parties (e.g., assaults by other passengers) when reasonable precautions could be taken.
  • They are not insurers; they are not automatically liable for every injury.

On the MBE, if you see a fact pattern involving a bus, train, or hotel guest, pause and ask whether the “utmost care” standard is being tested, not just ordinary reasonable care.

Landowners and Occupiers

The duty owed by landowners (and occupiers such as tenants or possessors) depends on the status of the person entering the land under the traditional common law approach.

Key Term: Trespasser
A person entering land without permission; owed only a minimal duty by the landowner.

Key Term: Licensee
A person on land with permission for their own purpose (e.g., social guest); owed a duty to be warned of known dangers.

Key Term: Invitee
A person invited onto land for business or public purposes; owed the highest duty of care, including inspection and repair.

On the MBE, assume the traditional three-category approach unless the question explicitly describes a jurisdiction that has merged categories.

Trespassers

A trespasser enters without consent or privilege. Distinguish:

• Undiscovered trespassers:

  • Duty: Only a duty to refrain from willful, wanton, or intentional harm (e.g., hidden spring guns).
  • No duty to warn of natural or artificial dangers.

• Discovered or anticipated trespassers:

  • Once the landowner knows or should reasonably anticipate trespassers, a limited duty arises.
  • Duty to:
    • Warn of or make safe known, highly dangerous artificial conditions that pose a risk of death or serious bodily harm, and
    • Take reasonable care in active operations.

Key Term: Discovered Trespasser
A trespasser whose presence is actually known to the land possessor (or should reasonably be anticipated), triggering a limited duty to warn of serious artificial dangers.

No duty is owed as to minor, non-deadly conditions.

Licensees

A licensee is on the land with permission but for their own purposes (social guests, door-to-door salespersons, persons entering for their own benefit).

For licensees, the landowner has:

• A duty to warn of known, non-obvious dangerous conditions that the licensee is unlikely to discover on their own.
• No duty to inspect for unknown dangers or to repair.

The homeowner in a typical “social guest slips on a hazard the owner knew about” fact pattern is dealing with a licensee.

Invitees

An invitee is on the premises for the owner’s business purposes or where the premises are held open to the public (customers in a store, visitors to a museum, patrons in a bank).

The landowner owes invitees a broader duty:

• Duty to use reasonable care to inspect for, discover, and make safe dangerous conditions (or adequately warn).
• Includes both:
  • Hidden defects the owner should reasonably discover, and
  • Some obvious hazards if the owner should anticipate harm despite the obviousness (e.g., distraction or necessity).

Because invitees generate economic benefit or are part of the public, courts require active inspection and maintenance, not just warnings about known conditions.

Trespassing Children and Attractive Nuisance

Children often do not appreciate risks the way adults do. Many jurisdictions impose a special duty when dangerous artificial conditions are likely to attract child trespassers.

Key Term: Attractive Nuisance Doctrine
A doctrine imposing a duty on landowners to exercise reasonable care to protect child trespassers from dangerous artificial conditions that are likely to attract them and that children cannot appreciate.

Typical elements (formulations vary, but this captures the MBE core):

• The owner knows or should know that children are likely to trespass.
• The condition is an artificial one (e.g., machinery, pools, trampolines, construction pits), posing a risk of death or serious bodily harm.
• Because of their youth, children do not discover or appreciate the risk.
• The utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk.
• The owner fails to exercise reasonable care to eliminate the danger or protect children.

If these conditions are met, children injured by the hazard can recover even if they were technically trespassing.

Modern Trend

Some modern jurisdictions abolish the licensee/invitee distinction and impose a general reasonable care duty to all lawful entrants. The MBE may reference this explicitly. If the question says the jurisdiction uses the “modern approach” or has “abolished common-law categories,” apply a single reasonable care standard to all non-trespassers.

Professionals

Professionals (doctors, lawyers, accountants, engineers, etc.) are held to the standard of care and skill that is expected of an average member of their profession in good standing.

Key Term: Professional Standard of Care
The level of skill, knowledge, and care ordinarily exercised by a typical member of the profession (or specialty) under similar circumstances.

Key points:

• The standard is objective: what a reasonably prudent professional with similar training and experience would do, not what this defendant personally thought was acceptable.
• A beginner (e.g., a first-year doctor or new lawyer) is held to the same standard as a reasonably competent practitioner, not to a “beginner” standard.
• In many medical cases, the standard may be national (especially for specialists), not local; but on the MBE, focus on “typical member of the profession under similar circumstances.”
• Expert testimony is usually required to establish the standard and breach, except where negligence is obvious to laypersons (such as amputating the wrong limb).

For physicians, a recurring exam area is informed consent:

• A doctor must disclose material risks, alternatives, and likely outcomes that a reasonable physician (or in some jurisdictions, a reasonable patient) would want to know.
• Failure to do so can be negligence even if the procedure itself is performed competently.

Children

Children are generally held to the standard of care of a reasonable child of similar age, intelligence, and experience, except when engaged in adult activities.

Key Term: Child Standard of Care
The degree of care expected of a child of similar age, intelligence, and experience under similar circumstances.

Important details for the exam:

• The focus is on what is reasonable for a child like this child, not the ordinary adult.
• Some jurisdictions hold that very young children (often under age five) cannot be negligent as a matter of law; if a question states a firm rule like this, apply it. Otherwise, default to the flexible “age, intelligence, experience” standard.
• Evidence about the child’s actual maturity, prior experience, and known limitations can be relevant.

Children Engaged in Adult Activities

When a child engages in an inherently dangerous activity traditionally reserved for adults, most courts hold the child to an adult standard of care.

Key Term: Adult Activity
An activity that is inherently dangerous and normally undertaken only by adults (e.g., driving a motor vehicle, operating a motorboat, or handling firearms), triggering an adult standard of care even for a child.

Examples of adult activities:

• Driving a car, motorcycle, snowmobile, or ATV on public roads.
• Operating a motorboat or possibly other powered vehicles.
• Using firearms in many jurisdictions.

In such cases, the child is judged as a reasonable adult would be, not as a child of similar age.

Persons with Physical Disabilities

A person with a physical disability is held to the standard of a reasonable person with that same disability.

Key Term: Physical Disability Standard
The standard of care for a person with a physical disability is that of a reasonable person with the same disability under similar circumstances.

Thus:

• A blind person must act as a reasonably prudent blind person would act (e.g., using a cane or guide dog where appropriate).
• A person with mobility limitations must take precautions reasonable for someone with those limitations.

This standard modifies the reasonable person test by incorporating the disability into the circumstances.

Contrast:

• Mental disability (including low intelligence) generally does not reduce the standard; defendants are still held to the ordinary reasonable person standard.
• Voluntary intoxication does not lower the standard; an intoxicated person is held to the standard of a reasonable sober person.

Emergencies

Many jurisdictions recognize that a person confronted with a sudden emergency not of their own making should be judged as a reasonable person in an emergency.

Key Term: Emergency Doctrine
A rule that a person confronted with a sudden, unexpected emergency (not created by their own negligence) must act as a reasonably prudent person would act under the same emergency circumstances.

Do not confuse this with a different standard; it is just the reasonable person standard applied in light of emergency circumstances. If the defendant created the emergency (e.g., by negligent driving), they do not benefit from the doctrine.

Parents and Supervisors

Parents, guardians, and similar supervisors are not automatically vicariously liable for their children’s torts under common law. However, they can be directly liable for their own negligence in supervising or controlling the child.

Key features:

• Parents must exercise reasonable care in supervising and controlling minor children, especially when they know the child has dangerous tendencies (a “devilish” troublemaker).
• Liability is limited to foreseeable actions. If the parent knew or should have known that the child posed a particular risk (e.g., frequently rides bike into the street), a failure to take reasonable precautions (fencing, warnings, supervision) can be negligent.
• Some jurisdictions have narrow statutes imposing limited vicarious liability on parents for certain intentional torts; if the statute is discussed in the fact pattern, apply it as written. Otherwise, focus on direct negligence.

Persons with Physical Disabilities​

A person with a physical disability is held to the standard of a reasonable person with that same disability.

Key Term: Physical Disability Standard
The standard of care for a person with a physical disability is that of a reasonable person with the same disability.

Worked Example 1.1

A passenger on a city bus is injured when the driver suddenly swerves to avoid a pothole. The driver claims he acted as any reasonable person would. Is the bus company liable?

Answer:
Yes. As a common carrier, the bus company owes the highest duty of care to its passengers and must do all that human care, vigilance, and foresight can reasonably do under the circumstances. The question is not whether the driver acted like an ordinary driver, but whether the carrier exercised utmost care in operating the bus and in deciding how to avoid the hazard.

Worked Example 1.2

A homeowner invites a friend for dinner. The friend slips on a loose rug the homeowner knew was dangerous but did not warn about. Is the homeowner liable?

Answer:
Yes. The friend is a licensee, and the homeowner had a duty to warn of known, non-obvious dangers. Because the rug presented a hidden hazard the homeowner knew about and the friend did not, failing to warn or fix it breaches the duty owed to a licensee.

Worked Example 1.3

A 10-year-old child is injured while driving a golf cart on a public road. What standard of care applies?

Answer:
The child will be held to the standard of care of an adult, because driving a motor vehicle on a public road is considered an adult activity. The jury should ask whether the conduct was reasonable for an ordinary adult driver, not for a typical 10-year-old.

Worked Example 1.4

A store allows neighborhood children to play on a large, unlocked construction excavator parked in its open lot. The owner knows children climb on it after hours but has taken no steps to block access. A 7-year-old child falls and is seriously injured. The child was technically trespassing. Can the child recover?

Answer:
Likely yes, under the attractive nuisance doctrine. The excavator is an artificial condition posing a risk of serious harm. The owner knows children are likely to trespass and that, due to their age, they are unlikely to appreciate the risk. The burden of locking or fencing the equipment is small compared with the risk. The failure to take reasonable precautions breaches the duty owed to child trespassers.

Worked Example 1.5

A surgeon performs a standard procedure competently but fails to inform the patient of a serious, known risk that would cause many reasonable patients to decline the procedure. The risk materializes and injures the patient. Is this negligence?

Answer:
Probably yes. Even without surgical errors, a physician must meet the professional standard of care, which includes providing adequate informed consent. A reasonably prudent surgeon would have disclosed a material risk that would influence a reasonable patient’s decision. The failure to inform is a breach of the professional duty, and the resulting injury is compensable if causation is proved.

Worked Example 1.6

A driver with well-controlled epilepsy has a seizure while driving, crashes, and injures another motorist. The seizure was completely unexpected; the driver had been seizure-free for years and complied with treatment. Is the driver negligent?

Answer:
Likely no. The standard is that of a reasonable person with the same physical condition. A reasonable person with well-controlled epilepsy, cleared to drive and complying with medical advice, would not necessarily have foreseen the seizure. If the seizure was truly sudden and unforeseeable, the driver’s loss of control is treated like an unavoidable emergency rather than negligence.

Exam Warning

On the MBE, always identify the status of the plaintiff (trespasser, licensee, invitee, passenger, patient, child, etc.) and the category of the defendant (landowner, professional, common carrier, parent, disabled person) before applying a standard of care. Applying the wrong standard is a common exam trap, especially in landowner questions and child/adult activity scenarios.

Revision Tip

Memorize the three categories of land entrants (trespasser, licensee, invitee) and the corresponding duties owed by landowners, as well as the exceptions for trespassing children. Quick categorization saves time and avoids errors on the exam.

Key Point Checklist

This article has covered the following key knowledge points:

• The ordinary reasonable person standard can be modified for certain classes (common carriers, innkeepers, landowners, professionals, children, and physically disabled persons).
• Common carriers and innkeepers must use utmost care consistent with practical operation for passengers and guests and may be liable for slight negligence.
• Landowners owe different duties to trespassers, licensees, and invitees, including special rules for discovered trespassers and child trespassers (attractive nuisance).
• Professionals are judged by the standard of a reasonably prudent member of their profession or specialty in good standing, often established by expert testimony.
• Children are held to the standard of a reasonable child of similar age, intelligence, and experience, unless engaged in adult activities, in which case an adult standard applies.
• Persons with physical disabilities are judged by the standard of a reasonable person with the same disability; mental disability and intoxication generally do not lower the standard.
• Parents and supervisors may be directly liable for negligent supervision and control of children with known dangerous tendencies.
• The emergency doctrine applies the reasonable person standard in light of a sudden, unforeseen emergency not of the defendant’s own making.

Key Terms and Concepts

• Reasonable Person Standard
• Common Carrier
• Innkeeper
• Trespasser
• Discovered Trespasser
• Licensee
• Invitee
• Attractive Nuisance Doctrine
• Professional Standard of Care
• Child Standard of Care
• Adult Activity
• Physical Disability Standard
• Emergency Doctrine