Chapter III Duty A ' Introduction

1
Chapter III Duty A . Introduction
The prima facie case in negligence Duty Breach
Causation Damages
2
Chapter III B. Obligations to others
MacPherson you are liable to anyone who might
foreseeably be harmed by your actions Palka
(hospital fan case) you are liable, but only to
specifically foreseeable victims -- a limited
class, known to be affected Strauss (blackout
case) you are liable, but only to customers, in
their residences Pulka (garage case) you are
not liable to anyone, because you have no duty.
3
Negligence The Cause of Action
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. (b) In
exceptional cases, when an articulated
countervailing principle or policy warrants
denying or limiting liability in a particular
class of cases, a court may decide that the
defendant has no duty or that the ordinary duty
of reasonable care requires modification.
4
Chapter III B. Obligations to others
Strauss, at page 146 In fixing the bounds of ..
. duty, not only logic and science, but policy
play an important role. The courts definition
of an orbit of duty based on public policy may at
times result in the exclusion of some who might
otherwise have recovered for losses or injuries
if traditional tort principles had been applied.
5
What are the goals of tort law?
Compensation Deterring unsafe 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
6
Goals that support limiting duty
Autonomy / Liberty interest of actor Slippery
slope in defining obligation Uncertainty of what
to do / potential liability if you act The
freezing homeless problem Create incentives for
people to watch out for themselves Respect the
autonomy of others, who choose to act
dangerously Avoiding crushing liability
7
Chapter III Duty B. Obligations to others
Uhr v. East Greenbush Central School District 1.
Was statute intended to protect a class of people
from a particular type of harm? 2. Would a
civil remedy promote the legislative purpose? 3.
Is a civil remedy consistent with the legislative
scheme?
8
The role of statutes in negligence law

• Distinguish
• Does the statute expressly create a cause of
  action for damages?
• Does the statute implicitly create a private
  cause of action? (Uhr v. East Greenbush Central
  School District)
• Does the statute acknowledge policy
  considerations that would lead a court to create
  a common law duty? (Maybe Tarasoff)
• Where a common law duty already exists, can the
  statute be used to establish the standard of
  care. (Martin v. Herzog)

9
Chapter III Duty A. Introduction

• The prima facie case in negligence
• Duty
• Duty to warn / protect / rescue
• Duty to protect a third party
• Breach
• Causation
• Damages

10
Chapter III Duty C. Obligations to protect
third parties
Therapist
Duty to warn?
Reveals threat
Third Party
Patient
injures
11
Chapter III C. Obligations to protect a third
party
Everyone is responsible, not only for the result
of his willful acts, but also for an injury
occasioned to another by his want of ordinary
care or skill in the management of his property
or person, except so far as the latter has,
willfully or by want of ordinary care, brought
the injury upon himself. Cal. Civ. Code section
1714 Whenever one person is by circumstances
placed in such a position with regard to another
that if he did not use ordinary care and skill in
his own conduct, . . . He would cause danger of
injury to the person or property of another, a
duty arises to use ordinary care and skill to
avoid such danger. Heaven v. Pender
12
Chapter III Duty The Rowland test (p. 159)
We depart from this fundamental principle only
upon the balancing of a number of
considerations 1) foreseeability of harm to the
plaintiff 2) degree of certainty that the
plaintiff suffered injury 3) closeness of
connection between the defendants conduct and
the injury suffered 4) moral blame attached to
the defendants conduct 5) the policy of
preventing future harm 6) the extent of the
burden to the defendant and consequences to the
community of imposing a duty 7) the
availability, cost, and prevalence of insurance
13
Chapter III Duty C. Obligations to protect
third parties
Therapist
Duty to warn? YES
Special Relationship
Third Party
Patient
injures
14
A Torts Template

• What did the case decide?
• Do you agree with the outcome? Do other courts?
• Does the courts reasoning / use of precedent
  adequately justify the outcome?
• How does the case fit with other cases you have
  read?
• Why do you / other courts disagree?
• What questions does the case leave undecided?

15
Tarasoff What did the court decide?
Therapist in fact does, or should reasonably
should, determine -- professional standard that
patient poses serious danger of violence to
others Then, duty to use reasonable care to
protect foreseeable victim -- reasonable person
standard