Duty Flashcards
Affirmative Duty to Act
Generally, no duty of action or forbearance to others unless very low burden of precuation and very high risk of harm
Exceptions to No Affirmative Duty
o Common Carriers
o Special Relationships (DISS TQ)
♣ Doctor-Patient: Tarasoff
♣ In Loco Parentis: Williams (Syracuse U)
♣ Social Host-Guest: Harper, Carter
♣ Social Partners: Farwell (failed argument)
♣ Teacher-Student: AW
♣ Quasi-Parental: Bjerke
o Undertaking: Farwell
♣ Taking charge of someone
♣ Non-negligently injuring someone and you know or have reason to know of the harm you caused
♣ Telling someone you’re going to take an action, e.g. calling 911
o Duty to 3rd Parties when there’s foreseeable harm (and foreseeable victims): Tarasoff, Randi
♣ Public Policy argument against: Reynolds
o Duty to Warn: Tarasoff (and you’re the only person who can prevent harm)
o Landowner – Invitees: Carter
♣ Criminal Activity: Posecai (Specific Harm, Similar Prior Incidents, Totality, Balancing test)
Harper v. Herman
Special Relationship:
F: P invitee on D’s boat, P dives into very shallow water, rendered quadriplegic. D did not warn
H: social host does not owe a duty of care to warn a guest about shallow water; need special relationship between the parties
Court lists four categories that could give rise to special relationship:
- P particularly vulnerable, cannot protect self (e.g. passenger on common carrier)
- D has considerable power over P’s welfare
- D receiving financial gain by hosting P
- P expects protection from D (e.g. information asymmetry; someone has paid for a tour)
Bjerke v. Johnson
F: minor P resides at D’s stable w/ approval of parents; D tells parents will look after P; P ends up in sexual relationship w/ D’s boyfriend
H: D owed P duty for assuming quasi-parental role
Farwell v. Keaton
Undertaking
F: P and D are out for the night, get into fight at bar, P gets beaten up, D finds him under car later, takes him to grandparents house, leaves P passed out in car overnight; P dies 3 days later. P’s expert says that if D had taken P to get medical treatment, chance of survival would have been >80%
H: Court says duty to avoid affirmative acts which worsen someone’s situation – here D entered voluntarily, assuming the duty of reasonable care (“taking charge of someone”)
Dissent says that majority conflated duty and breach. Argued majority is turning a moral duty into breach
Rowland v. Christian
General Duty to All Rule:
When imposing duty of due care: multi-factor test:
o foreseeability of harm to P, (like negligence)
o degree of certainty that P suffered injury, (like cause in fact)
o closeness of connection between D’s conduct and injury suffered, (like proximate cause)
o moral blame on D’s conduct,
o policy of preventing future harm,
o burden to D and consequences to community for imposing duty
Randi W. v. Muroc Joint Unified School District
F: Fraud and negligent misrepresentation case; P sexually assaulted by teacher, who was hired by school after positive recommendations from previous school districts, even though those school districts had knowledge that teacher had history of sexual misconduct w/ students
H: Unqualified recommendations constitute negligent misrepresentation – if going to recommend someone, have to disclose whole truth (can’t just give “misleading half truths) = negligence through omission here
Cites Rowland v. Christian – duty of due care owed to everyone
D argues that this decision will lead to employers being reluctant to provide references, but court is unswayed by this policy argument
Tarasoff v. Univ. of CA
- F: P killed by Poddar; Poddar was under psychiatric treatment of D; Poddar had stated intent to kill P; Poddar was held in hospital, eventually released
- Therapist-patient is special relationship; therapist has duty to warn foreseeable third-party victims when threat is clear– need to know who is threatened and needs to be credible threat. No liability if doctor doesn’t know who victim would be.
- Dissent – therapist predictions unreliable, undermines the doctor-patient relationship (need confidentiality)
- Statute after Tarasoff provides therapists w/ immunity unless threat is against “reasonably identifiable victim(s)”
Reisner: Tarasoff Notes Case
Dr. negligently failed to diagnose HIV, patient’s boyfriend contracts virus – court says Dr. owed duty to bf, he should’ve made patient aware she had HIV
Pate v. Threlkel: Tarasoff Notes Case
Dr. has duty to warn children of patient b/c the type of disease was genetic –> third party needs to be known
Hardee: Tarasoff Notes Case
must warn patient of risks/effects of any treatment (e.g. risk of driving immediately after the treatment)
Carter v. Kinney
• F: P injured while slipping on ice outside D’s home, going to D’s home for Bible study w/ other members of church, but P and D were not friends
• Holding: P is a licensee therefore no duty of due care, only duty to protect from known dangers (D did not know of the add’l ice here)
• Three classes:
1. Trespasser – no duty owed
2. Licensee – has permission, owed duty to protect (act/warn) from known dangers; avoid willful/wanton negligence; no duty to inspect
3. Invitee – has permission and confers/expected to confer a benefit (e.g. customers in a store); owed duty of due care (must inspect for latent dangers)
• Court determines status (T/L/I) as a matter of law – this is not issue for jury
Heins v. Webster Co.
General Liability to Non-trespassers:
• F: P falls at D’s hospital, was a licensee (wasn’t there for business purpose)
• Holding: court eliminates distinction between invitee and licensee – says duty of due care for all non-trespassers
• Exercising reasonable care based on 7 factors (similar to Rowland): foreseeability of harm; purpose for entrant entering premises; time, manner, and circumstances when entering; use of the premises; reasonableness of the inspection/repair/warning; opportunity and ease of repair; burden on land occupier and/or community in terms of inconvenience
o Becomes jury question (takes it from judge)
Exceptions to General Liability to Non-Trespassers
- Known trespassers – duty to warn about latent dangers
- Open and obvious dangers – no duty to warn (this is a general rule of duty)
- Child Trespassers: Is there an artificial condition that would draw kids in?
- If you know or should know that kids are likely to trespass, then you should take steps to prevents foreseeable injury
Posecai v. WalMart
Criminal Activity Case:
• F: Woman robbed at gunpoint outside Sam’s Club; assailant not caught; no security guard in the parking lot; no similar incidents
• H: no duty because danger was not foreseeable and precaution was undue burden
• Court discusses four approaches for foreseeability:
o Specific harm – outdated; no duty to protect patrons from 3d party violence unless specifically aware of imminent harm about to befall them
o Similar incidents – foreseeability established by evidence of previous crimes on or near premises puts landowner on notice; drawback is that it can be arbitrary
o Totality of circumstances – most common; focuses on level of crime in surrounding area, nature, condition, location of land in assessing foreseeability; places greater duty on business owners (preferred in concurrence)
o Balancing test (basically Hand Formula) court adopts here; foreseeability of harm versus burden of duty on landowner; need high degree of foreseeability to impose duty to provide security
