Negligence: Duty Flashcards
How is duty defined in Tort law?
Duty is a legally recognized relationship between the defendant and the plaintiff that creates an obligation on the defendant to conform to a particular standard of conduct.
Conduct oneself with a certain standard of care → avoid creation of unreasonable risk, factors include:
+ To a reasonable person
+ Under D’s circumstances
+ D’s conduct must create a risk of foreseeable injury
+ To a person in P’s position
Is duty a question of law or fact?
Duty is a question of law, but can be conflated by question of fact
+ There are cases where there’s a mixed question of law and fact
True or false: Courts are narrowing the application of duty in cases.
False. Courts are moving for ways to extend a general duty to specific circumstances
Explain the difference between misfeasance and nonfeasance in Tort law
Misfeasance: Active conduct that creates risk of harm to others
Nonfeasance: Omission; failure to take steps to reduce risks to others; did not create risk
List at least five nonfeasance special relationships
Common Carrier (higher standard of care) Custody of another Parent/child Spouses Innkeeper/guest Promise/Reliance Land Owner Doctor/Patient (higher standard of care) Jail/prisoner "Companions on a social venture" Superior knowledge of a special condition Contracts + privity doctrine Promises and reliance Statutes
True or false: When it comes to third parties, defendants don’t owe a duty to represent the truth
False.
Nonfeasance Duty NOT to Misrepresent → if making these misrepresentations would present a substantial, foreseeable risk of physical injury to 3rd persons.
+ False or misleading info
+ Reliance
+ Foreseeable and substantial risk of physical injury to a third person
Why did the doctor in Tarasoff owe a duty to the third party victim?
Look at these elements to determine duty to third parties (in advance)
+ Identifiable victim –> student killer mentioned Tarasoff specifically
+ Physical injury –> yes, murdered
+ Special relationship to victim or third party –> doctor had a special relationship with student killer
+ Foreseeability –> the doctor DID predict
True or false: A person who has no duty does not assume duty if they voluntarily involve themselves as an innocent third party in a situation where an injury has occurred?
False.
R.2d §324: One who has no duty to do so takes charge of another who is helpless IS subject to liability caused by
+ Failure of an actor to exercise reasonable care to secure the safety of the other while within the actor’s charge; OR
+ the actor’s discontinuing his aid or protection leaves the other in a worse position than when the actor took charge of him
(must act reasonably when initiate rescue)
(duty not to make worse / leave in a worse position)
Explain negligent entrustment. What does that mean for contributory third parties?
R.2d §390: One who supplies directly or through a 3rd person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
What case did we see negligent entrustment demonstrated?
Vince v Wilson → DUTY
Grandma tells car dealership that she wants to buy a car for her grandson, even though he’s got a substance abuse problem and bad driving record → knowledge
Grandma and dealership/salesperson negligent
What are the policy arguments for and against “crushing liability”?
Strauss v Belle Realty → NO DUTY as a Pub. Policy matter
Mere negligence for the power company not enough for P to recover, so P is claiming that the power company was grossly negligent
Majority: Courts must fix an orbit of duty which limits liability to manageable levels, even where this may exclude parties who would have been able to recover under traditional tort principles.
Although Strauss, as an apartment tenant, may belong to a narrowly defined class, and his injuries may have been foreseeable, his relationship with Consolidated Edison was no different from millions of other city residents.
Expanding the orbit of liability to include Strauss would increase liability to unmanageable levels and expose Consolidated Edison to crushing liability.
Dissent: The more people to whom damage is caused, the less liable an entity will be held. Does’t make sense. Plus, where’s the proof from the electric company that this would be a crushing blow to the business?
True or false: general tort law has across the board rules for social host laws
False(ish)
Social Host → public policy, each state different
+ Not generally liable (no duty) for persons who become intoxicated at your social gathering
+ Social host no duty can trump other ways to create a duty
True or false: Social hosts owe no liability to an adult who then injures themselves or a third party
True
True or false: Social hosts CAN be held responsible for minors who are served alcohol and then injures themselves
True
Minor can recover from host for injury to himself
BUT not liable to 3rd party for injury from minor’s intoxication
Reynolds v Hicks
+ P’s seeking 3rd party damages from minor’s intoxication, BUT social hosts, unlike commercial hosts or vendors, are not liable to third parties injured as a result of providing alcohol to an under-age person.
There are inherent differences between social hosts and commercial hosts and vendors.
A commercial host is motivated by profits, and is expected to exercise greater supervision and control over patrons.
In contrast, social hosts are not as capable of monitoring their guests’ alcohol consumption.
Permitting third party liability would raise a number of problematic questions →
Whether a social host would be required to check guests’ identification
Hire a bartender to monitor alcohol consumption
Ensure minors have not brought alcohol into a gathering
Administer breathalyzers to minors leaving a gathering
What are the arguments in favor of social hosts not having liability to 3rd parties injured as a result of their event (with alcohol)?
1) There are inherent differences between social hosts and commercial hosts and vendors.
+ A commercial host is motivated by profits, and is expected to exercise greater supervision and control over patrons.
+ In contrast, social hosts are not as capable of monitoring their guests’ alcohol consumption.
2) Permitting third party liability would raise a number of problematic questions →
+ Whether a social host would be required to check guests’ identification
+ Hire a bartender to monitor alcohol consumption
+ Ensure minors have not brought alcohol into a gathering
+ Administer breathalyzers to minors leaving a gathering
What are some policy arguments for no duty (private right to civil action)?
Policy Basis for Invoking No Duty
+ It limits litigation, limiting liability to too many people, limiting who can bring claim
+ Maybe require Gross Negligence to even bring a claim?
+ Does it make public policy sense b/c it means MORE people injured through tortfeasor’s gross negligence, the less responsibility for injuries incurred
What are the three steps to determine if a private right of action is implied in a statute?
Steps to determine if private right of action implied in statute:
1) Whether plaintiff is one of class for whose particular benefit the statute was enacted;
2) Whether recognition of a private right of action would promote the legislative purpose; AND
3) Whether creation of such a right would be consistent with the legislative scheme.
What is the policy/reasoning behind governmental immunity from lawsuits?
+ Give courts lots of discretion
+ Separation of powers
+ The courts shouldn’t tell the legislature where the resources should be allocated
+ Requiring police to have duty to everyone in tort would determine how this resource should be allocated.
+ Resource allocation for legislature to determine.
True or false: Government must waive immunity to be subject to a lawsuit
True!
Do police have a duty to protect the community, in and outside their work? Are there exceptions?
Police have duty to protect community, but do not have duty to any individual absent the police undertaking responsibilities to particular members and expose them to risks → No duty of police protection interpreted very stringently
Exception to general rule that no tort duty to provide police protection if special relationship exists:
+ An assumption by municipality through promises or action of an affirmative duty to act on behalf of the injured party.
+ Knowledge on part of municipality’s agents that inaction could lead to harm.
+ Some form of direct contact between agents and the injured party AND party’s justifiable reliance on municipality.
What are discretionary and ministerial decisions in governmental immunity?
1) Discretionary Decisions: decision based on judgment.
+ Municipality not liable for employees discretionary acts, even if negligent
2) Ministerial Decisions: conduct adhering to particular rule or some policy consideration
+ Municipality may be liable for these …. i.e. building maintenance, driving buses, highway maintenance)
+ Removes government immunity, but plaintiff still must prove duty, breach, causation, damages AND duty owed must be more than that owed to general public
True or false: Spousal immunity still exists in tort law
False. no longer valid once women had rights, separate legal identity
What are the different jurisdictions with regards to parent-child immunity?
1) Goller standard → duty to world v duty to child
2) Immunity in some states (NY) → let parents decide, given the differences in resources and upbringing
3) Broadbent → Reasonable parent standard
4) Palpably unreasonable → what does that mean?
Are courts trying to narrow or expand a call to duty when it comes to negligent parents and their children?
Yes, courts are shifting to general duty and finding negligence
What is the CL rule for claims for emotional distress (direct)?
Common Law ⇒ No physical impact, no recovery for emotional harm
BUT If physical harm, could attach emotional harm as well
What were the CL exceptions to the Impact Rule? What’s a case example?
EXCEPTIONS → we know people will be traumatized by these things, so don’t need physical impact to show it caused harm:
+ Negligent transmission of death of relative
+ Mishandling of body parts of a corpse
+ Loss of consortium
+ Foreseeability
Gammon → Emotional Distress
High probability that the family would experience distress due to hospital’s negligence
Sticking to exception AND public policy
What was the case where the CL impact rule changed to Direct Emotional Distress? Why were courts nervous to switch things up?
Falzone: change from CL Impact Rule to Duty based on Zone of Danger test
CL feared:
1) P’s would lie about emotional harm
2) Fear of litigation, proof is tough
3) Lack of understanding about mental health from “reasonable person” standard
4) Policy: physical security > emotional security
True or false: Courts could still limit P’s liability by saying there was no legal duty
This was true under CL and somewhat true today: Even if there is clear emotional suffering, the courts can limit liability by saying there was no legal duty, so no standing.
Courts today still like to narrow the scope of duty in emotional distress.
What is the zone of danger test? Who decides if the facts are within or outside the zone?
Zone of Danger Factors: Jury decides what constitutes the zone of danger, UNLESS there’s no material issue of fact
1) Within the zone of danger - within immediate risk of physical harm
2) Reasonably fear for own safety
3) Physical manifestation of severe emotional distress
What are considered physical manifestations of emotional distress? What are NOT considered physical manifestations of emotional distress
Physical manifestations that “count” include: heart attack, seizures, nightmares, palpitations
Example case Sullivan: PTSD, sleeplessness, depression are manifestations but transitory feelings not acceptable
NOT necessarily manifestations:
+ upset stomach, headaches –> anything that’s temporary
+ something that the general public has also experienced regularly.
Case ex: Buckley v. Metro North
+ No manifestations b/c he did not seek out a doctor or take a test to demonstrate his physical ailments
+ SCOTUS decides that it’s not uncommon to be exposed to carcinogens → merely being exposed to something that may cause cancer down the line doesn’t constitute zone of danger
How do courts decide if a patient with a needle/infection scare is within the zone of danger?
+ Needle must be shown to be infected for P to say they were within the zone of danger
+ Window of recovery limitation: Allows for recovery from time when P was pricked with an infected needle until the test results arrive
**Note that this could be a good COVID application for the exam
Do any jurisdictions NOT follow Zone of Danger test?
Most jurisdictions follow Zone of Danger test, but common law exceptions still exist → Ex: Georgia requires physical impact, even a mere splash of water
Explain the Zone of Danger (direct impact) exception of pre-impact
Pre-impact exception: most courts have allowed recovery where plaintiff was aware of impending death (or injury), even if the period of awareness was very short
Ex: Before car or plane crash → trauma experienced before harm
Emotional suffering can be different for different people
+ Left side of the plane vs. right side of the plane → one can see vs. one cannot
How does a P prove such pre-impact suffering?
+ P can recount their experience
+ Additional witnesses who were there
+ Phone calls/texts/letters to loved ones
+ Skid marks (awareness of doom)
+ Doctor’s reports
What is the indirect (bystander) claim for emotional distress?
Indirect (bystander) Liability → Not in zone of danger → negligent infliction of emotional distress
What are the different jurisdictions that determine bystander zone of danger for emotional distress?
1) Bystander Zone of Danger Rule, more strict (NY) Factors: \+ In Zone of Danger \+ Contemporaneous Observation \+ Close relation \+ Death or serious injury
2) Dillon Bystander Minority Rule, more broad (California)
Three factors needed to establish a duty to the plaintiff:
+ Whether plaintiff was located near the scene of the accident;
+ Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident;
+ Whether the plaintiff and the victim were closely related.
3) Thing Bystander Test (California becoming more strict)
+ Relation limitation
+ See the negligent act (not the aftermath)
+ Beyond anticipated reaction of bystander
Name at least one case for each bystander zone of danger application/jurisdiction
NY Strict: Johnson v. Jamaica Hospital
+ Hospital has no duty re: parent’s distress
Dillon/California more broad: Larsen v. Banner Health
+ Parents did recover from hospital switching at birth for 43 years!
+ “limited circumstances where contractual relationship exists for services that carry with them deeply emotional responses in the event of breach
Thing/More Strict California: Entergy v. Acey
+ Mother couldn’t collect from power company after her daughter was severely burned/electrocuted (lost fingers, burned skin)
+ Mother wasn’t there, just saw the results
NJ: Portee \+ Observation \+ Close Family Relationship \+ Death or serious injury \+ Emotional Dirtess
Name at least two exceptions to the bystander zone of danger rule
1) Bystander Zone of Danger Exception: Child Abuse
+ Courts will allow for bystander liability in child abuse cases, because the parent cannot be there to witness the incident(s)
+ Emotional distress in these cases is sincere or genuine
2) Bystander Zone of Danger Exception: Loss of Consortium
+ 3rd party’s claim for emotional harm against negligent party
+ Most states allow for loss of consortium when P’s spouse (same sex, married or unmarried) was injured, but not killed
What would be some possible policy considerations for bystander zone of danger exceptions?
Loss of consortium:
+ The state doesn’t want to take care of the injured spouse, spread the loss to the negligent P
+ Probably a lot of married people making this decision
+ Our society wants to encourage marriage
Child abuse:
+ Abusing kids is a taboo thing and we’ll make exceptions
+ Probably a lot of parents making these decisions
