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
