Duty - Misfeasance and Nonfeasance

Question 1

What are the Rowland factors?

For making a public policy argument for duty

Answer 1

1. The foreseeability of the harm to the plaintiff
2. The degree of certainty that the plaintiff suffered injury
3. The closeness of the connection between D’s conduct and P’s injury
4. The moral blame attached D’s conduct
5. The policy of preventing future harm
6. The extent of the burden to the defendant and the consequences to the community of imposing the duty
7. The availability, cost, and prevalence of insurance for the risk involved

Question 2

Define Misfeasance

Answer 2

Affirmative risk-taking conduct or ommission (may be done in a lawful manner but D does it improperly)

Question 3

Misfeasance

Define General Duty

Answer 3

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

Question 4

Define Nonfeasance

Answer 4

Failure to act to confer a benefit on P or intervene or prevent harm

Generally no duty in cases of nonfeasance

Question 5

Nonfeasance

What are the 3 exceptions to “no duty” for Nonfeasance

Answer 5

1. Duty to Aid/Rescue
2. Duty to Control/Warn
3. Duty to Protect Against Criminal Conduct

Question 6

Nonfeasance

What are the 3 instances when there may be a duty to aid/rescue?

Answer 6

1. D’s own conduct created the need to rescue
2. D undertook to act
3. There was a special relationship

Question 7

Nonfeasance

What type of conduct creates a Duty to Rescue?

When D’s conduct creates the duty

Answer 7

Intentional, reckless, or negligent

Question 8

Nonfeasance - Duty to aid/rescue

What is the SOC if D’s conduct created the need to rescue?

Answer 8

• D must take reasonable steps to rescue –> Duty to act as a reasonable person

Question 9

Nonfeasance - Duty to aid/rescue

What standard of care does D owe P if D undertook to act?

Answer 9

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

Question 10

Nonfeasance

What are the types of special relationships that trigger duty to aid/rescue?

Answer 10

Relationships of Dependence
1. Parent/Child
2. Business/Customer
3. Employer/Employee
4. School/Student
5. Common Carrier/Passenger
Less Common = social companions

Question 11

Nonfeasance

Other less common exceptions that create a duty to aid/rescue

Answer 11

1. Statutory
2. Contractual
3. Intentional prevention of others
4. Reliance on a gratuitous promise
5. Innocent prior conduct

Question 12

Nonfeasance

How is a duty to control/warn created?

Answer 12

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

Question 13

Nonfeasance - Duty to control/warn

Who must be warned?

Answer 13

Split Jx
1. Duty to warn readily idenitifiable victims
2. Duty to warn all foreseeable victims

Question 14

Nonfeasance

Public Policy Concerns with Duty to Warn/Control

Answer 14

Can therapists predict violence?
Will disclosure be effective?
Is duty to warn inconsistent with doctor <–> patient confidentiality?

Question 15

Nonfeasance - Duty to Protect

Under what circumstances is there a duty to protect against third party criminal conduct and what duty is created?

Answer 15

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

Question 16

Foreseeability for duty to protect

How to assess prior similar incidents?

Answer 16

1. Number,
2. Nature, and
3. Location of prior similar incidents

Narrow and broad approaches

Question 17

Foreseeability for duty to protect

Totality of circumstances is widely used to determine the foreseeability of criminal conduct. What constitutes the totality of circumstances?

Answer 17

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

Question 18

Foreseeability for duty to protect

Balancing Test (California only)

Answer 18

Degree of foreseeability v. burden of duty being imposed

Question 19

Duty to protect

Public Policy concerns

Answer 19

1. Fairness of requiring LP to protect entrant from crimes
2. Prevalence of crime in certain areas, burden on property owners
3. Potential under-protection in prior similar incidents
4. The impact on plaintiffs who must plead foreseeability at the duty stage

Question 20

What are the 3 approaches to determine foreseeability of 3d party criminal conduct?

Answer 20

1. Totality of circumstances
2. Prior similar incidents
3. Balancing test: foreseeability v. burden of imposing a duty (Cal. only)