Duty

Question 1

General (negative) Duty

Answer 1

To avoid doing harm by unreasonable behavior

Question 2

Affirmative Duty: Duty to strangers (good Samaritan issues)

Answer 2

1. Generally, there is NO DUTY
2. Exception is if the person was endangered by the actor’s conduct
3. Legislative Exceptions exist, but there is no tort liability

Question 3

Affirmative Duty: Special Relationships (Duty of reasonable care)

Answer 3

1. Voluntary undertakings like starting a rescue or forging a relationship
2. Particular Relationships (Harper, Farwell)
   a. Common carriers, innkeepers, possesors of land who hold it open to public, those with custody over people who cannot care for themselves
   b. Duty not to harm, no duty to help people outside of the relationships
   c. Farwell- Drinking buddies relationship, not widely accepted as court made it up
3. Duty to protect against conduct of a 3rd party (Tarasofffl; negligent entrustment)
   a. Therapist has a reasonable belief that a patient is dangerous and a threat to a 3rd party, there is a duty to warn the 3rd party
   b. Duty to control –> duty to warn
   c. Must protect from foreseeable and unforeseeable harm
4. Reasons for not having an affirmative duty
   a. Where is the stopping point?
   b. How far is reasonable to protect others?

Question 4

Liability of Owners and Occupiers of Land: Traditional Tripartite Division

Answer 4

1. Invitees- Duty of reasonable care, does not include social visitors (Carter v. Kinny)
2. Licensees- Duty to warn of known concealed dangers (various formulations); refrain from active negligence
3. Trespassers- generally NO DUTY, but with limitations
   a. No unprivileged intentional torts or wanton recklessness
   b. Frequent/Discovered trespassers- must exercise reasonable care in active operations on premises and warn of concealed artificial dangers.
   c. Children: Attractice Nuisance Doctrine, if children are lured onto your property by something, there is a duty (ex: kid with the attack dog
   d. 3rd party cannot invoke

Question 5

Liability of Owners and Occupiers of Land: Modern Challenges

Answer 5

1. Heins v Webster County, minority rule but relevant # of states have adopted: Treats invitees and licensees the same. Some jurisdictions expand this to trespassers
2. Foreseeability governs: status matters to see foreseeability