Duty - Misfeasance and Nonfeasance Flashcards
What are the Rowland factors?
For making a public policy argument for duty
- The foreseeability of the harm to the plaintiff
- The degree of certainty that the plaintiff suffered injury
- The closeness of the connection between D’s conduct and P’s injury
- The moral blame attached D’s conduct
- The policy of preventing future harm
- The extent of the burden to the defendant and the consequences to the community of imposing the duty
- The availability, cost, and prevalence of insurance for the risk involved
Define Misfeasance
Affirmative risk-taking conduct or ommission (may be done in a lawful manner but D does it improperly)
Misfeasance
Define General Duty
D engages in affirmative risk-creating conduct or omission that leads to personal injury or property damage. Duty is owed to any foreseeable plaintiff.
Exception - Rescuers are to always be treated as foreseeable
Define Nonfeasance
Failure to act to confer a benefit on P or intervene or prevent harm
Generally no duty in cases of nonfeasance
Nonfeasance
What are the 3 exceptions to “no duty” for Nonfeasance
- Duty to Aid/Rescue
- Duty to Control/Warn
- Duty to Protect Against Criminal Conduct
Nonfeasance
What are the 3 instances when there may be a duty to aid/rescue?
- D’s own conduct created the need to rescue
- D undertook to act
- There was a special relationship
Nonfeasance
What type of conduct creates a Duty to Rescue?
When D’s conduct creates the duty
Intentional, reckless, or negligent
Nonfeasance - Duty to aid/rescue
What is the SOC if D’s conduct created the need to rescue?
- D must take reasonable steps to rescue –> Duty to act as a reasonable person
Nonfeasance - Duty to aid/rescue
What standard of care does D owe P if D undertook to act?
Split Jx
A. If action begins, D must act reasonably
B. If D starts to act they must not leave victim in a worse position
All Jx
C. If D’s conduct causes others not to act
Nonfeasance
What are the types of special relationships that trigger duty to aid/rescue?
Relationships of Dependence
1. Parent/Child
2. Business/Customer
3. Employer/Employee
4. School/Student
5. Common Carrier/Passenger
Less Common = social companions
Nonfeasance
Other less common exceptions that create a duty to aid/rescue
- Statutory
- Contractual
- Intentional prevention of others
- Reliance on a gratuitous promise
- Innocent prior conduct
Nonfeasance
How is a duty to control/warn created?
A special relationship between the defendant and a person where the defendant has the ability to control the person and the defendant should have known the need for control
Nonfeasance
Nonfeasance - Duty to control/warn
Who must be warned?
Split Jx
1. Duty to warn readily idenitifiable victims
2. Duty to warn all foreseeable victims
Nonfeasance
Public Policy Concerns with Duty to Warn/Control
Can therapists predict violence?
Will disclosure be effective?
Is duty to warn inconsistent with doctor <–> patient confidentiality?
Nonfeasance - Duty to Protect
Under what circumstances is there a duty to protect against third party criminal conduct and what duty is created?
A special relationship of dependency between the dedendant and the person who needs protection, then there is a duty to take reasonable affirmative action to protect from foreseeable criminal conduct
Foreseeability for duty to protect
How to assess prior similar incidents?
- Number,
- Nature, and
- Location of prior similar incidents
Narrow and broad approaches
Foreseeability for duty to protect
Totality of circumstances is widely used to determine the foreseeability of criminal conduct. What constitutes the totality of circumstances?
All of the events surrounding the event;
1. the property,
2. location,
3. nature and condition,
4. prior similar incidents.
A lack of similar incidents is NOT dispositive
Foreseeability for duty to protect
Balancing Test (California only)
Degree of foreseeability v. burden of duty being imposed
Duty to protect
Public Policy concerns
- Fairness of requiring LP to protect entrant from crimes
- Prevalence of crime in certain areas, burden on property owners
- Potential under-protection in prior similar incidents
- The impact on plaintiffs who must plead foreseeability at the duty stage
What are the 3 approaches to determine foreseeability of 3d party criminal conduct?
- Totality of circumstances
- Prior similar incidents
- Balancing test: foreseeability v. burden of imposing a duty (Cal. only)
