Duty Flashcards
Default duty
The most common situation when finding duty. Describes the duty to act with reasonable care under the circumstances when creating a risk of harm.
Foreseeability
If a reasonable person would not have foreseen injury to anyone through her actions, there is no duty owed to anyone who was unexpectedly hurt by the ∆’s actions.
General foreseeability
Was ANY injury to ANY person/property foreseeable from the perspective of a reasonable person in the D’s position? If so, D had a duty.
Exceptions to duty
(1) uncontrollable liability; (2) no duty to rescue; (3) no duty to warn.
Uncontrollable liability analysis
foreseeability of harm to P; degree of certainty P suffered injury; closeness of connection between D’s conduct and injury; policy of preventing future harm; burden on D; consequences to community of imposing duty w/ resulting liability for breach
Duty to warn
There is no duty to warn. If one is aware of a foreseeable harm or risk of danger, there is no duty to warn or protect others from said harm or danger. HOWEVER, a party does have a duty to warn or protect another if the party has (1) created the danger; (2) failed to exercise its ability to control the source of danger; or (3) has voluntarily assumed the duty to protect.
Exceptions to no duty
(1) volunteer rescues; (2) promissory estoppel; (3) prior dangerous conduct (creating the danger e.g. dude non-negligently turning truck didn’t warn oncoming drivers that he blocked the road) ; (4) special relationships
Will you be held to a higher standard of care if you have certain expertise when undertaking a volunteer rescue?
No, you will be held to the standard ordinary care requirement, not a higher standard due to your expertise (e.g. you used to be a professional lifeguard and you’re saving a drowning person)
Promissory estoppel
A person who promises to inspect a good/service assumes a duty to exercise reasonable care to protect the parties involved if (1) the failure to exercise care increases the risk of harm and; (2) the person relies on the inspection. There is only a legal duty when there was reliance AND reliance was reasonable. NOTE: An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a WORSE POSITION than existed before the actor took charge of the other.
Prior dangerous conduct (creating the danger) duty
If you create a dangerous situation that others are likely unable to avoid, even if its non-tortious, you have a duty to exercise REASONABLE CARE to WARN people of the dangerous situation/minimize the risk.
Special Relationships
A special relationship can be established (1) by statute or common law rule; (2) contract or other private relationship; (3) indirectly or impliedly via the relationship. E.g. common carriers to passengers, innkeepers to guests, landlords to tenants, possessors of land who are open to the public, and those who take custody of another.
NIED Elements
(1) Duty to use reasonable care not to inflict ED; (2) breach: of that duty: which causes: (4) emotional distress so severe that no reasonable person should be expected to endure it.
NIED Bystander Majority Rule
A bystander can recover for ED if their distress was foreseeable to D. Distress is foreseeable if (1) P was NEAR accident and (2) P and victim were CLOSELY related. Most courts allow recovery for standalone (not accompanied by physical injury) emotional distress where the D was negligent and emotional harm to P was foreseeable and caused in fact by D’s negligence.
Standalone Economic Loss General Rule
Ps cannot recover for only economic loss. Also, absent a K situation or special relationship, a claimant who has suffered solely economic loss as a result in commerce caused by negligent injury to the property of a third party cannot recover damages.
Exceptions to General Rule on Standalone Economic Loss
(1) contract (but limited to contract terms); (2) physical impact w/ property (e.g. 3 mile island); (3) non-stranger situations (e.g. professional liability where touching not part of service like lawyers and accountants); (4) non-stranger cases (e.g. fishermen - D knew that people depended upon a natural resource for their livelihood).
