Duty of Care

Question 1

Duty of Care General Rule

Answer 1

wherea persons conduct has not created a risk of physical harm to another they have duty of care to the other unless a court determines that an affirmative duty exists

Question 2

liability in contract

Answer 2

Liability rested solely in contract which could no extend beyond those in privity

Question 3

Manufacturer’s Duty

Answer 3

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made and there is
added knowledge that the thing will be used by persons other than the purchaser without new tests, then irrespective of
contract, the manufacturer of this thing of danger is under a duty to make it carefully.

Question 4

Attorneys Duty

Answer 4

Defendant attorneys owe no duty of care to plaintiff

Question 5

Failure to act: special relationships

Answer 5

a duty is imposed with regard to risk that arises within the scope of the relationship.

Question 6

Degree of Knowledge

Answer 6

The degree of knowledge or foresight of the risks is critical for the court

Question 7

Schools employee duty

Answer 7

Even assuming that the employees had a special relationship with the P’s no duty of care subsisted to warn of third-party criminal acts. It is a question of law.

Question 8

University duty

Answer 8

a university owes no duty of care to protect the minor plaintiff from these influences: no duty was found to regulate the social activities of students.

Question 9

Act

Answer 9

seen as conduct that creates a risk of harm
creates a duty

Question 10

failure to act

Answer 10

better seen as conduct that does not create a risk of harm
no duty - subj to exceptions

Question 11

Failure to act general duty

Answer 11

An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that [an] affirmative dut[y exists].

Question 12

Special Affirmative Duty Situations

Answer 12

1) Voluntarily undertaking a
duty of care
(2) Special relationships
* Parent/Child
* Employer/Employee
* Common carrier/passenger
* Shopkeeper/patron

Question 13

Voluntarily undertaking a duty

Answer 13

One who undertakes, to
render services to another which he should recognize as
necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking,

Question 14

Special Relationships

Answer 14

If a defendant has a special relationship with the plaintiff, the defendant may be liable for failure to act if the plaintiff is in peril.

Question 15

Duty to Rescue

Answer 15

A duty to rescue may be owed i.e., a duty to take positive or affirmative steps-where the D controls the instrumentality causing the injury.

Question 16

JS and MS v RTH

Answer 16

The spouse of a child molester may have a duty to take reasonable steps to prevent or warn of the molestation.

Question 17

IIED

Answer 17

(1): A (volitional) act.
(2): Act is “extreme and outrageous
conduct”; [OBJECTIVE]
(3): Intent or RECKLESSNESS to cause
severe emotional distress. [SUBJ.]
(4): Substantial cause of actual damage
(i.e., severe emotional distress)
(minority rule also requires a physical
manifestation)

Question 18

Emotional Distress Damages

Answer 18

Damages for emotional distress are recovered if:
1) P establishes a close familial
relationship;
2)P is present at the scene & is aware it is causing injury;
3)P, as a result, suffers “serious emotional distress . . . beyond that of disinterested witnesses & which is not abnormal.”

Question 19

NIED

Answer 19

• must be a foreseeable risk of physical injury to P
• P is within the zone of danger
• P suffers physical symptoms from the distress

Question 20

May a claim for NIED succeed if there is no physical harm to the P?

Answer 20

NO

Question 21

May a claim for NIED succeed if there is physical harm but no actual danger?

Answer 21

NO

Question 22

Bystander emotional distress

Answer 22

Bystanders outside zone of danger will have a claim if:
1. P and injured person are closely related
2. p was present at the scene
3. p personally observed or perceived the event

Question 23

Exceptions where ED allowed w/o observation

Answer 23

• Negligent mishandling of a relative’s corpse
• Negligent mistaken report of a terminal diagnosis
• Negligent mistaken report of a relative’s death

Question 24

Endresz v. Friedberg

Answer 24

No wrongful death action is maintainable because the twins were never alive.

Question 25

Wrongful life

Answer 25

• A wrongful life action was available where the D’s negligence robs the mother of the choice to abort the child, thus obligating the child into a wrongful life.
• The damages cover special damages for extraordinary medical expenses during infancy and during majority