Duty of Care Flashcards
MacPherson v. Buick Motor Co.
Major topical rule
There is nothing anomalous in a rule which imposes upon A who has contracted with B, a duty to C and D and other according as long as he knows or does not know that the subject-matter of the contract is intended for their use.
Weirum v. RKO General Inc.
Major Rule
One breaches his duty of ordinary care when his actions foreseeably cause a third party to act negligently, which results in unreasonable harm
Fish v. Waverley Elec. Light and Power Co.
If a company is contracted by the employer to install celling lights they have a duty to the employees.
Flannelly v. Delaware & Hudson Co.
Major topical rule
The question of determining duty of care is generally left to the jury.
Manhattan by Sail, Inc. v. Tagel
If the case of the accident is not in question and the only possible cause is one of negligence a plaintiff may move for summary judgement.
Restatement Third of Torts § 7
LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
Ordinarily… a duty to exercise reasonable care exists with regard to causing physical harm but recognizes that for reasons of principle or policy courts may determine that an exception should be created for a given class of cases.
Duty arises under which of the following:
nonfeasance; misfeasance; malfeasance
Malfeasance absolutely does because the actor is creating the risk
Misfeasance and nonfeasance require a special duty otherwise inaction does not create a duty
What is nonfeasance?
Nonfeasance is the failure to act
Duty is almost always connected to warning someone
Usually no duty
What is misfeasance?
Misfeasance is an affirmative act w/o malicious intent
One is liable for breaches of duty already owed (can be choosing not to act or deciding not to do something)
Duty depends on circumstances
What is malfeasance
willful and intentional cause of harm
duty is created if it did not already exist because of the creation of an unreasonable risk
Rowland v. Christian
Major topical rule
The following Rowland factors are used to find if a duty exists in situations not previously considered: (1) the foreseeability of harm to the plaintiff;
(2) the degree of certainty that the plaintiff suffered injury;
(3) the closeness of the connection between the defendants’ conduct and the injury suffered;
(4) the closeness of the connection between the defendant’s conduct and the injury suffered;
(5) the moral blame attached to the defendant’s conduct;
(6) the policy of preventing future harm;
(7) the extent of the burden to the defendant and consequences to the community of imposing the duty to exercise care with resulting liability for breach; and
(8) the availability, cost, and prevalence of insurance for the risk involved.
Usually used to consider duty to a third party
Palka v. Servicemaster Management Services Corp.
To find duty to a third party, the relationship between the defendant’s contractual obligation and the inured non-contracting party’s reliance and injury must be direct and demonstrable not incidental or merely collateral.
In re New York City Asbestos Litigation
A plaintiff could not sue a partner’s employer because of asbestos carried home on clothing from work because a duty was found only to the employee in New York.
Restatement (Second) of Torts § 315
(1) There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless:
(a) A special relationship between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct; or
(b) A special relation exists between the actor and the other which gives to the other a right to protection.
Quiroz v. ALCOA Inc
In Arizona a court found no basis or a duty by the employer to a family member of its employee
One of two views, contrasted by Quisenberry
Quisenberry v Huntington Ingalls Inc.
Rejected a no duty argument based on lack of relationship to find in the vast majority of negligence actions the parties did not closely know each other before the incident so actions can be based on a broad duty not to injure others by action or omission.
White v. Sabatino
Taking on responsibility as the DD creates a duty to third persons as the driver has assumed a duty of care but a broken promise and therefore failure to act as DD is not a basis as it lacks the affirmative action
Do the majority of states allow for actions against utility companies for their services or failure to provide it?
No. Only four states allow it, though the view is begining to fade
Moch Co. v. Rensselaer Water Co.
Court declined to extend the duty of care to non customers even when they use the service provided for by the customer (city contracted with a water company means no duty for people that use the water).
Strauss v. Belle Realty Co.
As a matter of pubic policy, utility companies do not owe a duty to people who experience an accidental stop of services, like a blackout, in the absence of a preexisting contractual duty.
Food Pageant v. Consolidated Edison Co.
The electric company was liable for injury caused to a grocery store when the incident was caused by employees failing to follow procedure rather than an outside incident.
Clay Electric Cooperative Inc v. Johnson
A utility company under contract to maintain street lights owes a duty to a pedestrian who was hit by a car in an area darkened due to failure of the company to maintain the lights because of the undertaking doctrine
Louisville Gas and Electric Co v. Robertson
A court relied on the undertaking doctrine to impose a duty on a utility that contracted to maintain street lights.
Heaven v. Pender
A duty of reasonable care can attach if it is reasonably foreseeable that an actor’s careless conduct may risk physical harm to another who is not in contract with the actor but who has been given permission to enter and who has entered the actor’s premises
