Negligence - Duty Revisited

Question 1

Third Restatement of Torts: Duty (The Usual Duty)

Answer 1

(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Question 2

Third Restatement of Torts: § 37 No Duty of Care with Respect to Risks Not Created by Actor (No Duty to Act)

Answer 2

An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38- 44 is applicable.

Main Q–Is this a case of misfeasance or nonfeasance?
A. If misfeasance (acting wrongfully) apply regular negligence rules
As a plaintiff you want to try to frame it as a misfeasance case first
B. If nonfeasance (not acting) no liability unless an exception applies

Question 3

Prior Conduct (No Duty to Act–Exceptions)

Answer 3

When prior conduct even not negligent may set up a duty to act (even if prior conduct was not negligent or intentional)

Ex: hitting an animal on accident and leaving it there that causes a later accident for someone else (no cases)

Question 4

Volunteer/Good Samaritan (No Duty to Act–Exceptions)

Answer 4

If you start to help voluntarily, the tort law may impose an obligation to continue that effort and to do so reasonably

Others may be dissuaded to help because you will solve the problem

The duty may be a little less (no cases)

Question 5

Third Restatement of Torts: § 40 Duty Based on Special Relationship with Another (Special Relationship with Victim–No Duty to Act–Exceptions)

Answer 5

(a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a common carrier with its passengers,
(2) an innkeeper with its guests,
(3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises,
(4) an employer with its employees who, while at work, are:
(a) in imminent danger; or
(b) injured or ill and thereby rendered helpless,
(5) a school with its students,
(6) a landlord with its tenants, and
(7) a custodian with those in its custody, if:
(a) the custodian is required by law to take custody or voluntarily takes custody of the other; and
(b) the custodian has a superior ability to protect the other.

Question 6

Third Restatement of Torts: § 41 Duty to Third Parties Based on Special Relationship with Person Posing Risks (Special Relationship with Perpetrator–No Duty to Act–Exceptions)

Answer 6

(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a parent with dependent children,
(2) a custodian with those in its custody,
(3) an employer with employees when the employment facilitates the employee’s causing harm to third parties, and
(4) a mental-health professional with patients.

Based on medical malpractice duty to inform
Do we look at it from the professional perspective or the reasonable patient perspective?

Question 7

Duties of Landowners and Occupiers

Answer 7

The traditional common law rule held that the owners or occupiers of land (LOOO’s) owed no obligation of reasonable care to trespassers upon that land, and further that they owed only a limited duty toward social guests to warn such guests of known latent hazards

Question 8

Invitee

Answer 8

(a) Someone whom the landowner or occupier (LOOO) has invited onto the LOOO’s property in the expectation that the LOOO will benefit from the invitee’s presence, (business guest)
(b) LOOO owes invitee a duty of reasonable care

Question 9

Licensee

Answer 9

(a) Someone whom a LOOO has allowed-but not necessarily invited-onto his property. The key difference between licensees and invitees is that the former do not bestow any tangible benefits on the landowner
(b) LOOO has two basic duties
-To warn them of hidden dangers (but typically only those hidden dangers of which the LOOO is aware)
-To refrain from willfully, wantonly, or recklessly injuring them

Question 10

Trespasser

Answer 10

(a) Someone who enters or remains on a property without the LOOO’s permission
(b) LOOO’s only duty was to refrain from willfully, wantonly, or recklessly harming them

Question 11

Duty to Avoid Unreasonable Imposition of Emotional Harm? (NIED)

Answer 11

What happens when emotional harm arises accidentally?

Emotional harm that is not parasitic to physical harm

Over time courts have started to allow recovery in some additional but still limited circumstances

Question 12

i. Physical injury from physical impact (Traditional Rule)

Answer 12

Plaintiff suffering a direct physical injury, tort law covers that

Question 13

ii. Physical Impact Rule

Answer 13

The rule that comes out of Mitchell case:
-You must at least have some physical impact from the incident
-If the negligence at issue did not cause a physical impact, there could be no recovery for the negligent infliction of emotional harm

Question 14

iii. Physical manifestation or consequence of fright/emotional harm

Answer 14

-To recover from emotional harm, an objective way to show that the result is more severe that just an emotional harm
-Still have to get past the physical impact rule

Question 15

iv. Danger Zone Rule (from Falzone case)

Answer 15

“We hold therefore that where negligence causes fright from a reasonable fear of immediate injury” and when you have a reasonable fear of personal injury is when you’re in the zone of danger

Question 16

v. Bystander Rule

Answer 16

(a) Foreseeability for purposes of duty
(b) You have to be a certain type of close relative, have to suffer severe emotional distress, etc.
1. Some stick with the case-by-case factoring
2. Some use a requirement

Question 17

v. Bystander Rule (Dillon factors)

Answer 17

Dillon factors:
In determining whether a defendant should reasonably foresee the injury to plaintiff or whether defendant owes plaintiff a duty of care:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Beginning of what become the bystander rule (a limit on the foreseeable harm that a plaintiff can recover for)

Courts are torn as to whether they apply them as factors OR they apply them as a hard and fast requirement

Question 18

Duty to Prevent Harm by Those to Whom One Serves Alcohol?

Answer 18

(a) Duty to Protect from, or Controlling, Others?
(b) Based on Statute–If a plaintiff can establish the defendant provided alcohol to an obviously intoxicated minor, and that such action was the proximate cause of the plaintiff’s injuries or death, the applicable statute in this case permits liability in two circumstances (see case below)
(c) Based on Case Law–The transaction/sale of goods (see case below)

Question 19

Duty to Avoid Unreasonable Imposition of Purely Economic Harm?

Answer 19

The traditional rule is modified by the court

The Actual Rule–Not all foreseeable loss makes the defendant liable, the class itself would not be sufficiently ascertainable, an identifiable class of plaintiffs must be particularly foreseeable in terms of the type of persons or entities comprising the class, the certainty or predictability of their presence, the approximate numbers of those in the class, as well as the type of economic expectations disrupted → the rule seems squishy enough to be applied differently by different courts

Question 20

Duties to Family Members of Victim?

Answer 20

(a) Loss of consortium claims are allowed for husbands and wives (Diaz v. Lilly) pp.461
-A third party’s tortious interference with a contractionable relationship may be actionable
(b) Unmarried partners–claimants must prove an “intimate familial relationship”
(c) Children–some states allow for children to recover for loss of consortium with parents, but more states allow for parents to recover for loss of consortium with children

Question 21

Immunity Precluding (Preventing) Duty?

Answer 21

Employer’s immunity–Adopting a universal worker’s compensation system, so employers are essentially immune from tort claims

State law immunity–Have to look to see if the state has or has not waived state law immunity

Federal law immunity–The FTCA waives sovereign immunity of the US so that the government may be liable in tort “in the same manner and to the same extent as a private individual under like circumstances”, BUT there are exceptions like the discretionary function exception waiver of immunity shall not apply “ to any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on part of a federal agency or an employee of the Government, whether or not the discretion be abused.”