Duty to rescue Outline 2, 112304

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Duty to rescue (Outline 2, 11/23/04)

• Moral and political theory Why treat nonfeasance
  differently from misfeasance?
• Behavior we require (legality)
• Behavior we desire (morality)
• Behavior we revere
• Cases The slippery distinction between
  nonfeasance and misfeasance, in practice (Buch
  and Montgomery Trucking)

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Rescue Cases

• Baby (or drunk adult) drowning in puddle
• Kitty Genovese
• New Bedford rape case.
• Bartender wont allow phone call to police.
• Heart attack victim who staggers to your door and
  wants help or to call an ambulance.
• Psychotherapist who knows about patients desire
  to kill his ex-girlfriend.

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Added issues in imposition of legal duty to rescue

• Uncouples liability from culpability.
• Possibility of unintended consequences
• People avoid places where they might have to
  rescue
• Moral hazard for the rescued they do things they
  cant handle.
• People might substitute mere compliance for
  helpful rescue.
• Encourage officious intermeddling.
• Discourage witnesses to crime from coming
  forward, since theyd have to confess to failure
  to rescue. (Note On the other hand, prosecutors
  could use threat of non-rescue to trade against
  testimony.)

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Misfeasance/NonfeasanceClass outline, 11/30/04

• When should inaction be reframed as action?Buch
  v. Amory, Montgomery Trucking
• When should inaction be tortious even if
  conceptualized as inaction? The law of special
  relationships Kline, Tarasof, Addie, Rowland

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Special Relationships
Offender/harm

Tarasof
Victim/Plaintiff
Defendant
Kline
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Common Law Categories

• Invitee One who comes upon land by the
  invitation of the occupier. Business guests
• Duty Reasonable care that premises are safe
• Licensee One who comes upon land with the
  permission of the occupier. Social guests.
• Duty (1) No traps, no hidden dangers that
  are known or ought to be known to the occupier.
  Or (2) Basically the same as trespasser.
• Trespasser One who comes upon land against the
  will of the occupier.
• Duty Refrain from intentional harm, or
  reckless disregard for trespassers safety.

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Buch v. Amory

• Cases of enticement, allurement, or invitation
  of infants to their injury, or setting traps for
  them, and cases relating to the sufficiency of
  public ways, or to the exposure upon them of
  machinery attractive and dangerous to children,
  have no application here. (pp. 499)

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Attractive Nuisance

• Creates duty of reasonable care to trespassers.
• But has limitations. Typically
• Benefits children only.
• Artificial conditions only.
• Sometimes (Restatement)
• Deft. knows or has reason to know of condition.
• Defendant realizes or should realize danger to
  children.
• Slight cost compared to significant risk.

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Rowland v. Christian Demise of
common law categories

• Problem The categories are easy to apply, but
  dont fit the considerations actually appropriate
  for liability. So, available strategies
• Blurring of nonfeasance and misfeasance.
• Expansion of category of trap/concealed danger.
• Modify the doctrine adopt version 1 of standard
  of care for licensee, or merge it with invitee
• Substitute the standard of reasonable care.
• Substitute strict liability for defects.