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 B. Obligations to others
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 apply to categories of cases
Question of fact, jury decides
Fact - Specific
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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.
Compare Jeremy Waldron, On the Road Again Good
Samaritans and Compelling Duties, 40 Santa Clara
L. Rev. 1053 (2001)
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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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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
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
freezing homeless problem Create incentives for
people to watch out for themselves Respect the
autonomy of others, who choose to act dangerously
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Chapter III Duty

• Farwell v. Keaton
• No relation to harm but that you know or should
  know that action is required to avoid harm no
  duty unless
• Special relationship with the victim OR
• You act in a way that leaves a helpless victim
  worse off.
• AND OTHERS see the notes

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Chapter III Duty
There may be a duty to act, warn, rescue IF You
are in a special relationship From Harper, p.
133 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 4. p. 135 you
negligently or innocently injure another, must
take reasonable care to prevent further harm Note
6, p. 136 you innocently create a risk, you may
have a duty to take reasonable steps to prevent
the risk from occurring. Note 3. p.141 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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Chapter III B. Obligations to others
MacPherson v. Buick Motor Co. (p. 130)
Buick fails to inspect the car
Duty? Yes, even tho the negligence is inadequate
inspection BECAUSE it is foreseeable that injury
will result!
K
Driver of car, Pedestrian
Dealer
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Chapter III B. Obligations to others
Moch v. Rensselaer Water Co. (p. 143)
Water Co. Fails to provide water pressure
K
Duty ?
No, even though it is foreseeable!
Warehouse that burned down
City
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Chapter III B. Obligations to others
Strauss v. Belle Realty (p.144)
Con Ed
K
Duty? NO
Rate payers
Third parties
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Chapter III B. Obligations to others
Palka v. Servicemaster, note 5 p. 149
Servicemaster
Known and identifiable group, direct and
demonstrable reliance
K, Duty
Hospital
Nurse
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Chapter III B. Obligations to others
Pulka v. Edelman, note 7 p. 150
Garage owner
No duty
No relationship
Driver
Pedestrian
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Chapter III B. Obligations to others
Cases in which you act unreasonably, in a way
that threatens foreseeable harm 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 you are
liable, but only to customers, in their
residences Pulka (garage case) you are not
liable to anyone, because you have no duty.
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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.
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Negligence The Cause of Action

• The Prima Facie Case 4 elements
• 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. (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.
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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?
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The role of statutes in negligence law

• Distinguish
• Does the statute expressly create a cause of
  action for damages?
• Does the statute 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)

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Chapter III Duty C. Obligations to protect
third parties

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

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Chapter III Duty C. Obligations to protect
third parties
Therapist
Duty to warn?
Reveals threat
Third Party
Patient
injures
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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
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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
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Chapter III Duty C. Obligations to protect
third parties
Therapist
Duty to warn? YES
Special Relationship
Third Party
Patient
injures
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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
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Chapter III Tarasoff Do you / would other
courts agree?
The New York cases
Dr. prescribes meds
Duty?
Third Party
Patient
injures
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Tarasoff Whats left undecided?

• Are there other special relationships?
• Does the rule extend to property damage as well
  as personal injury?
• Does the duty run to the public at large?

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Chapter III Duty

• Duty
• Duty to protect a third party
• Special relationship to injurer
• Negligent misrepresentation
• Breach
• Causation
• Damages

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Chapter III Duty C. Obligations to protect
third parties
School district defendants
Negligent misrepresentation
Duty?
Plaintiffs school
Relies to hire
Employee
Plaintiff student
injures
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Chapter III Duty

• Duty
• Duty to protect a third party
• Special relationship to injurer
• Negligent misrepresentation
• Negligent entrustment
• Breach
• Causation
• Damages

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Chapter III Duty C. Obligations to protect
third parties
Car owner
Loans car
Duty?
Known, incompetent driver
Plaintiff
injures
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Chapter III Duty C. Obligations to protect
third parties
Aunt / Car seller
Provides money / Sells car
Duty?
Plaintiff
Driver
injures
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Chapter III Duty C. Obligations to protect
third parties
Social Host
Provides alcohol
Duty?
Plaintiff
Minor, driver
injures
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Chapter 3 Duty D. Landowners and Occupiers

• The prima facie case in negligence
• Duty
• Duty to warn / duty to rescue
• Limited liability for negligence
• Duty to protect a third party
• Landowner / occupier
• Breach
• Causation
• Damages

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Chapter 3 Duty D. Landowners and Occupiers
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.
36
Usually --
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law
General
Question of fact
Specific
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Here --
As to premises liability, the particular
standard of care that society recognizes as
applicable under a given set of facts is a
question of law for the courts. Carter v.
Kinney, at p. 191
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Chapter III (D) Duty Landowners and Occupiers

• The two step, classical approach
• When a person is injured on anothers property
  and sues the person who is in possession of the
  property
• Determine the plaintiffs status.
• Determine the precise duty that attaches to an
  entrant with that status.

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Step One Status

• Trespasser Enters without privilege or consent
  (R2dT 329)
• Licensee Enters with privilege created by
  consent or otherwise (R2dT 330)
• Invitee Two categories
• A business visitor Enters for a purpose
  directly or indirectly connected with possessors
  business.
• A public invitee Enters land open to the public
  for a particular purpose

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R2dT 330 Comment c Consent and
toleration.  The word "consent," or "permission,"
indicates that the possessor is in fact willing
that the other shall enter or remain on the land,
or that his conduct is such as to give the other
reason to believe that he is willing that he
shall enter, if he desires to do so. A mere
failure to object to another's entry may be a
sufficient indication or manifestation of
consent, if the possessor knows of the other's
intention to enter, and has reason to believe
that his objection is likely to be effective in
preventing the other from coming.
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Step Two

• Duty owed to a licensee (R2dT 342)
• Dangerous conditions on land
• knows or has reason to know of the condition and
  should realize that it involves an unreasonable
  risk of harm
• should expect that licensee will not discover or
  realize the danger, and
• fails to exercise reasonable care to make the
  condition safe, or to warn the licensees of the
  condition and the risk involved, and
• the licensees do not know or have reason to know
  of the condition and the risk involved.

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• Duty owed to an invitee (R2dT 343)
• Dangerous condition on land
• knows or by the exercise of reasonable care
  would discover the condition
• should realize that it involves an unreasonable
  risk of harm to such invitees
• should expect that they will not discover or
  realize the danger, or will fail to protect
  themselves against it
• fails to exercise reasonable care to protect
  them against the danger.

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Step Two Duty for Dangerous Condition of Land

• Liable to invitee if
• knows or by the exercise of reasonable care
  would discover the condition
• shld realize involves an unrsble risk of harm to
  invitees
• should expect they will not discover or realize
  the danger, or will fail to protect themselves
• fails to exercise reasonable care to protect
  them against the danger.

• Liable to licensee if
• knows / reason to know of condition should
  realize it involves unrsble risk
• should expect that licensee will not discover
• fails to exercise rsble care to make condition
  safe, or to warn of risk
• licensees do not know or have reason to know of
  the condition risk

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• Critical points in the way in which the duty is
  defined
• Actual knowledge vs. duty to inspect
• Duty to warn vs. duty to make safe
• Treatment of conditions that are open and
  obvious
• Liability for activity vs. liability for
  condition of land

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Duty owed to a trespasser (R2dT 333) With some
exceptions, a possessor of land is not liable to
trespassers for physical harm caused by his
failure to exercise reasonable care (a) to
put the land in a condition reasonably safe for
their reception, or (b) to carry on his
activities so as not to endanger them. NARROW
EXCEPTIONS 1) Child trespassers 2)
Known trespasser, limited area, harmed by
activity
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Chapter III (D) Duty Landowners and Occupiers
When a person is injured on anothers property
and sues the person who is in possession of the
property The Rowland or Heins approach A
person in possession of land owes a duty to use
reasonable care to protect entrants onto his or
her land. Including trespassers?
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• What makes trespassers different?
• Liberty interest of landowners?
• Wrongdoers?
• Contributorily negligent by definition?
• Assume the risk, because they know there are no
  protections?

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Chapter III (D) Landowners Occupiers The Duty
to Prevent Criminal Acts
Problem Landowners and Occupiers (2) When is
there an obligation to take steps to prevent
crime by a third party? Landlord / Tenant,
injury in common area (Kline v. 1500 Mass
Ave) Business / Patron (Posecai v.
WalMart) University / Student? Factors
vulnerability control economic benefit
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Chapter III Landowners Occupiers The Duty to
Prevent Criminal Acts

• Problem Landowners and Occupiers (2)
• When is there an obligation to take steps to
  prevent crime by a third party?
• What kind of relationships give rise to a duty?
• What triggers the obligation?
• Specific harm rule
• Prior, similar incidents test
• Totality of the circumstances test
• Balancing approach

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Chapter III Landowners Occupiers The Duty to
Prevent Criminal Acts
Problem Landowners and Occupiers (2) Would the
limited duty rule in Riss apply? Police assumed
duty direct communication reliance. Weiner
(subway, no duty to prevent assault) OR Lopez
(bus case, rejecting resource arguments
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Chapter III Duty Review Summary
The prima facie case in negligence Duty Is
there an obligation to use reasonable
care? Breach What does reasonable care
require? Causation Damages
52
Chapter III Duty Review Summary
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
Question of fact, jury decides
Specific
53
Chapter III Duty Review Summary

• Areas of no duty
• No duty to warn / rescue / protect another
  unless
• Special relationship to injured person
• Undertaking to aid
• Special relationship to person causing harm
• Created risk through
• Affirmative acts
• Negligent misrepresentation
• Negligent entrustment

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Chapter III Duty Review Summary

• Areas of limited duty
• Limited duties of utilities
• Car key cases / special circumstances test
• Limited duty in landowner cases
• For activities or artificial conditions
• For harm threatened by others (crimes on
  property)

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Chapter III Duty Review Summary
The broad themes Even though you had the
ability to prevent the foreseeable harm from
occurring by taking reasonable steps, you are not
liable, OR at least you are not liable to this
particular person Explicit invocation of
policy to justify limitations Tug of war between
judge and jury
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Chapter III Duty The Rowland test a tool
for identifying the policy arguments that matter
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