Duty of Care Flashcards
Duty of Care General Rule
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
liability in contract
Liability rested solely in contract which could no extend beyond those in privity
Manufacturer’s Duty
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.
Attorneys Duty
Defendant attorneys owe no duty of care to plaintiff
Failure to act: special relationships
a duty is imposed with regard to risk that arises within the scope of the relationship.
Degree of Knowledge
The degree of knowledge or foresight of the risks is critical for the court
Schools employee duty
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.
University duty
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.
Act
seen as conduct that creates a risk of harm
creates a duty
failure to act
better seen as conduct that does not create a risk of harm
no duty - subj to exceptions
Failure to act general duty
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].
Special Affirmative Duty Situations
1) Voluntarily undertaking a
duty of care
(2) Special relationships
* Parent/Child
* Employer/Employee
* Common carrier/passenger
* Shopkeeper/patron
Voluntarily undertaking a duty
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,
Special Relationships
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.
Duty to Rescue
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.
JS and MS v RTH
The spouse of a child molester may have a duty to take reasonable steps to prevent or warn of the molestation.
IIED
(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)
Emotional Distress Damages
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.”
NIED
- must be a foreseeable risk of physical injury to P
- P is within the zone of danger
- P suffers physical symptoms from the distress
May a claim for NIED succeed if there is no physical harm to the P?
NO
May a claim for NIED succeed if there is physical harm but no actual danger?
NO
Bystander emotional distress
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
Exceptions where ED allowed w/o observation
- Negligent mishandling of a relative’s corpse
- Negligent mistaken report of a terminal diagnosis
- Negligent mistaken report of a relative’s death
Endresz v. Friedberg
No wrongful death action is maintainable because the twins were never alive.
Wrongful life
- 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
