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
Harper v. Herman
Major Topical Case
Knowledge of a foreseeable risk alone does not impose a duty to warn or protect.
Delgado v. Lohmar
The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protect does not impose a duty to take that action unless a special relationship exists.
Restatement Second of Torts § 314
A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
An innkeeper is under a similar duty to his guests.
A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
Andrade v. Ellefson
Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition however
Minority rule
Bjerke v. Johnson
When a child is boarded for an extended period of time with an unrelated adult, a special surrogate parent or custodial relationship can develop with the same duties as a biological parent
Farwell v. Keaton
The existence of a duty is ordinarily a question of law however, if there are factual circumstances which give rise to a duty the existence of those facts must be determined by a jury.
Expansion of duty
Union Pacific Railway Co. v. Cappier
There is no duty to help a victim who was non-tortiously run over while trespassing on the defendant’s railroad tracks
Maldonado v. Southern Pacific Transportation Co.
The court relaxed Cappier and imposed a duty to help and recognized the Second Restatement of Torts § 322
Second Restatement of Torts § 322
If an actor knows or has reason to now that by his conduct whether tortious or innocent, he has caused such bodily harm to another as to make them helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm
Simonsen v. Thorin
Whoever puts an obstruction on a public highway even without negligence is under an obligation to remove the nuisance or use ordinary care to warn the other traffic of the danger ahead.
Menu v. Minor
The court found the driver had no affirmative duty to warn people of the immovable car that blocked a lane because he had not voluntarily issued a duty to the plaintiffs
Second Restatement of Torts § 324
Duty of One Who Takes Charge of Another Who Is Helpless
(1) One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
Special relationships (always/can/never) automatically create a duty
Can, but not always.
Special relationships (always/can/never) automatically create a duty
Can, but not always.
Is there a bartender duty to a drunk?
Most states impose commercial liability on businesses that serve alcohol to the point of intoxication if that person later harms another.
Randi W. v. Muroc Joint Unified School District
Major topical case
In general, a person is not liable to another for nondisclosure or a failure to act, absent a special relationship between the parties.
Restatement (Second) of Torts § 311
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such
information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.
Mixon v. Dobbs Houses Inc
If you make a promise to someone outside your duty, you take on the responsibility to perform that promise.
Fox v. amazon.com inc.
Amazon owed a duty to customers based on its selling of the product and its failure to highlight the danger in its warning email created a breach of that duty.
Jansen v. Fidelity & Casualty Co. of New York
The insurance company did not have a duty to warn about dangers uncovered during a regular insurance inspection because the purpose of the inspection was to underwrite the policy.
Smith v. Radecki
Major topical case
Physicians do not owe a duty to warn of potential dangers found when testing someone for worker’s compensation claims as long as they are working for the employer not the employee.
**Majority Rule **
Reed v. Bojarski
A doctor hired by a company does have a duty to warn about signs of danger that appear during a visit.
Minority rule
Garcia v. Superior Court
A parole officer has a duty to exercise reasonable care in giving information to people who they reasonably believe the parolee may harm if they tell the person that the parolee is not a risk.
Jackson v. State
An adoption agency has a duty to disseminate health information concerning the child to potential adoption parents if it provides background information.
Passmore v. Multi-Management Services Inc.
The court refused to adopt restatement § 311 to protect the free flow of information between past and present employers
There are … general categories of people for premise liability
Three. Trespasser, licensee, and invitee
What is a licensee
Premise liability
All people who enter land with permission but no larger motive like open to the public for the purpose for which it is open or business dealings
If a person enters because of the owner’s interest they are a …
Invitee. When the person entering believes the premise has been made safe for them because of the owner’s interest in their visit a duty is established and the person becomes an invitee.
Duty or duties to trespassers
There are only 2. Keep the land in a reasonably safe contion and don’t actively harm them.
Changes in stand your ground states
The duty to warn about open and obvious dangers is (settled/decisive)
Decisive. States and courts are split on the issue.
About how many states still use invitee/licensee system?
Less than half.
When Cali. tried to get rid of it the legislature responded by seperating regular and flagrant trespassers.
Rowland v. Christian
Major topical case
The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner’s liability, this status alone is not determinative.
Majority rule excluding the trespasser category
Rowland factors popularity
Licensee/invitee- majority rule
Trespasser- minority
Carter v. Kinney
A landowner does not owe a duty of care to protect a licensee from unknown dangerous conditions.
Heins v. Webster County
A landowner or occupier must exercise reasonable care for the protection of lawful visitors to his property. To determine reasonable care consider the following factors: (1) the foreseeability or possibility of harm
(2) purpose for which the entrant entered the premises (3) the time, manner, and circumstance under which the entrant entered the premises
(4) use to which the premises are put or are expected to be put
(5) the reasonable of the inspection, repair, or warning
(6) the opportunity and ease of repair or correction or giving of the warning
(7) the burden on the land occupier or community in terms of inconvenience or cost in providing adequate protection.
Reversed by leg. and distinguished “flagrant” trespassers from others
Louis v. Louis
The duty of a landowner is a special kind because the victim need not establish the existence of another duty beyond that of the landowner/occupier
University of Texas v. Garner
A university was protected by the Texas recreational use state and therefore did not have a special duty to protect someone on the campus for recreation only
Pesaturo v. Kinne
A land possessor who knows or should know if a dangerous natal condition on their property must act reasonably to eliminate or ameliorate the risk posed by such condition.
Collins v. Marriott International Inc
A resort owner has a duty to maintain the premises in a reasonable safe condition, a property owner also has a duty to prevent foreseeable risks on adjacent poverty because foreseeability creates a broader zone for risk
One view contrasted by Galindo
Galindo v. Town of Clarkstown
A person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on the property.
One view contrasted by Collins v. Marriott
Brown v. Delta Tau Delta
A national fraternity owes a premises liability duty of reasonable care to the local chapter’s social invitees based on general principals of duty with particular emphasis on foreseeability, control, and relationship of the parties.
Bennett v. Napolitano
If someone is trespassing they are not owed a duty to protect them from accidents not set up by the owner
Bowers v. Ottenad
When a licensee who’s presence is known or should be known is injured by an affirmative act conducted on the property by the occupier the duty owed is one of reasonable care under the circumstances
Johnson v. Goodson
Premise liability does not displace liability for the affirmative acts of negligence by landowners who are to be judged by the standard of care.
Restatement (Second) of Torts § 332
Invitees for Business Purposes
A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.
Types of Business Visitors under Restatement § 332
Business visitors fall into two classes. The first class includes persons who are invited or permitted to come upon the land for a purpose directly or indirectly connected with the business which the possessor conducts thereon, as where a person enters a shop to make a purchase or to look at the goods displayed therein or where he enters a factory as an employee or to deliver raw materials.
The second class includes those who come upon the land for a purpose which is connected with their own business which itself is directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land.
Thus, a delivery man of a provision store while delivering goods to a residence is a business visitor of the possessor thereof. So too, is a workman who comes to make alterations or repairs on the land used for such purposes.
Restatement (Second) of Torts § 330
A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.
Harris v. Niehaus
For premise liability “the particular standard of care that society recognizes as applicable under a given set of facts is a question of law for the courts”
What general idea is used to balance the need for professional reporting of harzards and doctor/patient confidentiality?
“where public peril begins, secrecy ends”
Tarasoff v. Regents of U. Cal.
Tarasoff v. Regents of University of California
When someone has a special relationship with someone intending to harm a third person who is sufficiently identifiable or foreseeable and knew or reasonably should have known that injury was likely to occur they have an affirmative duty to act.
What is the Tarasoff test?
Tarasoff Test:
(1) A special relationship exists between the professional (anyone with training that can predict and act in an educated way on the steps below)
(2) Actually knew or reasonably should have known of the threat
(a) Threat is of physical harm to a person
(3) Professional relationship with power of control aka ability to act to protect or warn
(4) Reasonably identifiable victim
Thompson v Alameda
There is no duty to warn of potential harm against those who are not readily identifiable.
Bellas v. Greenson
As a psychiatrist, defendant had no duty to disclose confidential communications from a patient where the only risk of harm to be prevented was self-inflicted harm.
Reisner v. Regents of the University of California
The plaintiff, patient’s boyfriend, could state a claim against defendants, hospital and physician, for failure to warn the patient that she had been exposed to a communicable disease, because such a warning was necessary to protect plaintiff.
Pate v. Threlkel
When a physician knows with a high likelihood of risk for a third party and knows of the existence of the third party they are under a duty to warn them of the risk.
Safer v. Estate of Pack
The court held that a physician had a duty to warn those known to be at risk of avoidable harm from a genetically transmissible condition because there was no essential difference between the type of genetic threat at issue here and the menace of infection, contagion or a threat of physical harm.
Hawkins v. Pisarro
If a risk is known, but a third party does not yet exist, a physical does not have duty to warn that future party.
Distinguishes Pate
Who does the government owe a duty to?
Because the government and law enforcement owes a duty to all citizens, they are under no special duty to protect any one individual. This is different if police offer a special promise of protection
MacPherson v. Buick Motor Co.
The manufacturer of a product generally owe a duty of care only to the person who purchased the product from the maker with generally no duty of care owed to the remote buyers or users, except under very restrictive circumstances.
Restatement (Second) of Torts § 310 Conscious Misrepresentation Involving Risk Of Physical Harm
(1) An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor
(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and
(b) knows
(i) that the statement is false, or
(ii) that he has not the knowledge which he professes.
Why might courts choose not to induce a duty for a new type of plaintiff?
If creating a duty would create too great a burden the courts may find no duty simply as a matter of public policy
James v. Meow Media Inc
If someone commits a copycat assault, murder, or rape based on media they have consumed the creator of said media cannot be said to have a duty to the victims.
Yost v. Wabash College
As a matter of public policy universities that make policies against hazing do not have a duty to students injured during hazing to prevent the disincentivizing of unis to make such policies.
MacGregor v. Walker
Churches that offer religious counseling and help to victims of abuse do not have a duty to prevent injury as a matter of public policy
Similar to Yost v. Wabash College
How do legislatures typically respond to findings of liability for social hosts with drunk minors?
Often if a court finds a duty for social hosts to prevent minors from drinking the legislature overturns and creates a statute that insulates hosts going forward
Liability standards vary wildly from states to state but is typically a high burden
Reynolds v. Hicks
A social host who provides alcohol to a minor does not have a duty to third parties injured by said mino BUT under the situation a vender would have a duty
Minority Opinion
Hansen v. Friend
In Washington a minor has a cause of action against a social host who served them alcohol
Marcum v. Bowden
In South Carolina the court adopted a duty to not knowingly serve alcohol to someone under 21 and if a host does they would be subject to liability for a third person’s injuries
Kirkiakos v. Phillips
Overruled precedent that found the choice to drink as the sole proximate case of harm in suit against a social host who served a minor alcohol
How did courts historically view the duty relationship between husband and wife?
In the past a married couple were viewed as unified and therefore could not sue each other, however this began to change in the 19th century and now there are virtually no longer existence in regards to intentional and negligent harms
Most states ban mention of insurance involvement in a suit
How did courts historically view the duty relationship between husband and wife?
In the past a married couple were viewed as unified and therefore could not sue each other, however this began to change in the 19th century and now there are virtually no longer existence in regards to intentional and negligent harms
Most states ban mention of insurance involvement in a suit
Boardbent v. Broadbent
Rejected the Goller test and instead implemented a reasonable parent standard of care as to prevent giving parents “carte blanche” to act negligently toward the child
