Chapter III Duty A' Introduction

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Chapter III Duty A. Introduction
The prima facie case in negligence Duty Breach
Causation Damages
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Chapter III Duty A. Introduction
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law, judge decides based on
precedent.
General or Categorical rules
Question of fact, jury decides
Fact-specific
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Duty
Restatement (Third) of Torts Proposed Final Draft
No. 1 7. Duty (a) An actor ordinarily has a
duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm.
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Duty
Restatement (Third) of Torts Proposed Final Draft
No. 1 7. Duty (a) An actor ordinarily has a
duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm. BUT
37. Subject to 39-45, an actor whose conduct
has not created a risk of physical harm to
another has no duty of care to the other.
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Chapter III Duty B. Obligations to others
A bystander sees a helpless child in danger. At
no risk to him or herself, s/he could rescue the
child. Should there be a legal obligation to act
that would require the bystander to compensate
the child for her injuries if the bystander
unreasonably fails to act?
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What are the goals of tort law?
Compensation Reduce the cost to society of
unnecessary injuries Protect people from
unnecessary injuries Deter unsafe conduct Deter
wrongful conduct Promote economic
efficiency Encouraging productive activity /
liberty Internalizing costs -- Especially by
commercial activities Protecting innocents from
those who create risks Settling normative,
contested social issues Redistributing wealth
Is the no duty if you didnt create risk rule
consistent with these goals?
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Goals that support a no duty to act rule
Autonomy / Liberty interest of actor Slippery
slope in defining obligation Uncertainty of what
to do / potential liability if you act The
Katrina problem Want to create incentives for
people to watch out for themselves Respect the
autonomy of those choose to act dangerously
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Chapter III Duty B. Obligations to others
Jeremy Waldron, On the Road Again Good
Samaritans and Compelling Duties, 40 Santa Clara
L. Rev. 1053 (2001)
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Chapter III Duty B. Obligations to others
Harper v. Herman The fact that an actor
realizes or should realize that action on his
part is necessary for anothers aid or protection
does not of itself impose upon him a duty to take
such action . . . unless a special relationship
exists.
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Chapter III Duty B. Obligations to others --
Harper v. Herman
Is the case rightly decided? Isnt this someone
who created the peril, and then failed to act?
Like a driver who fails to step on the brakes
when he sees a pedestrian?
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Note 8, p. 146
Incomplete the formula is, young Skywalker, and
misleading!
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Chapter III Duty B. Obligations to others
Harper v. Herman Would it make a difference if
the boat, and the skippers services were
chartered?
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Chapter III Duty
There may be an affirmative duty to act to
prevent harm or rescue IF You are in a special
relationship From Harper, p. 135 common
carrier, innkeeper, possessor of land open to
the public, custody deprived of normal
opportunities for self-protection Prosser, n.2
plaintiff vulnerable and dependent on D, who
holds power over ps welfare. Economic
advantage to the defendant. Farwell companions
on a social venture, with an implicit
understanding that assistance will be rendered.
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Chapter III Duty
There may be a duty IF Note 2(b) p. 137 you
negligently (or innocently?) injure another, must
take reasonable care to prevent further harm Note
2 ( c), p. 139 you innocently create a risk,
and then discover it, you may have a duty to take
reasonable steps to prevent the harm from
occurring. Note 4. p.144 you begin to render
assistance, you may have a duty to use
reasonable care not to leave the person worse off
(or, maybe, a duty to use reasonable care.
Farwell.).
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Assignments
Friday pp. 146 n. 8 168 SKIP Uhr at p.
168-175 Tuesday pp. 175 183 Wednesday pp.
183-195