Modern Conceptions: Special Duties to Act - Jan. 11

Question 1

What does the modern doctrine of tort law say when it comes to duty? (Feldman)

Answer 1

The conventional statement of modern doctrine is that tort law does not recognize a general duty to act and instead recognizes an increasing number of exceptions to the “no duty to act” rule.

Question 2

What are the exceptions to the modern duty doctrine? (Feldman)

Answer 2

The principal exceptions are “assumed duty,” “custody,” and “control.”

Question 3

What happens in assumed duty cases? (Feldman)

Answer 3

In assumed duty cases, defendants are held to have duties to act – to rescue or protect persons whose peril they are not legally responsible for creating – because they have deliberately or inadvertently brought that responsibility upon themselves.

Question 4

What three typical bases of assumed duties are stated in Folsom? (Feldman)

Answer 4

Increasing the peril to the plaintiff, misleading the plaintiff into believing the peril had passed, or depriving the plaintiff of the possibility of other help.

Question 5

What four requirements for a negligent undertaking claim are stated in O’Malley? (Feldman)

Answer 5

(1) the actor undertook, gratuitously or for consideration, to render services to another;

(2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons;

(3) the actor failed to exercise reasonable care in the
performance of the undertaking;

(4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons.”

Question 6

What do custody cases involve? (Feldman)

Answer 6

Custody cases involve an exception to the “no duty to act” rule justified by the dependence of the person in custody on the care and protection of the party with custody.

Question 7

What should a person note when it comes to custody cases? (Feldman)

Answer 7

Note that the duty here can be either a duty to protect others from harm at the hands of the person in custody (Dudley) or a duty to protect the person in custody from harm at the hands of others (Mirand).

Question 8

What do courts look at when determining “special duties to act”? (Feldman)

Answer 8

Here and elsewhere in the law of “special duties to act,” courts take the scope of the duty as well as the existence of the duty to be a matter of law for the judge (not the jury) to decide. See J.S.