Page 12 Flashcards
What is the general rule for nonfeasance?
Traditionally there’s no duty to take affirmative action to aid or protect the plaintiff, control another, or intervene, unless an exception applies
What is another word for nonfeasance?
Affirmative action
What is the mnemonic to help remember the exceptions that apply to nonfeasance in tort?
PRC v SLC + PUBCARs
(same as Crim for beginning)
- Police
- Utility
- Business
- Criminal conduct
- Alcohol
- Reliance
What are the two ways you have to help if you create peril?
- duty to rescue: for any conduct, even untortious that creates peril
- prevent further harm: applies if you caused the initial harm
If you make a gratuitous promise to assist someone, is there liability for not doing the promise?
Not unless you start to carry it out, at that point you must use due care (minority position: you must follow through on all gratuitous promise)
If you do start to rescue, what are the two views on your duty?
- traditional view: you can’t leave the plaintiff in a worse position than you found him in
- modern view: once you start to act, you have to do it reasonably
What is the rule about reliance as an exception to nonfeasance?
If you create specific reliance that you will rescue, that creates a duty
What is an example of reliance?
Someone calls you for help and you promise to be right there, but then don’t show up…. you had a duty
What is the duty to protect others from criminal conduct?
If you become aware that a third person intends to do specific harm to the plaintiff, you have a duty to warn the P
What are some situations where you would have a duty to protect a third person from criminal conduct?
- psychotherapist/patient
- custodian/prisoner
- school/student
What is the famous case that relates to having a duty to protect a third person from criminal conduct?
Tarasoff where therapist had a duty when she knew her patient was going to harm another
What is the split in the courts for a duty to protect another from criminal conduct?
- some courts: duty is only for readily identifiable victims
- other courts: all foreseeable victims
What is the business duty to protect customers?
If there is a showing of prior similar incidents, there may be a duty to protect
When do you often see the business duty to protect customers?
In parking lots of businesses
If a restaurant is located in a high crime area, would it be foreseeable that a criminal act would occur in the parking lot at night if there were no lights?
Yes. So the restaurant owner likely owed a duty to put in lights
In what situations have courts found proprietors liable for intentional acts of third parties?
When those acts are reasonably foreseeable. This can happen even if the act has never happened before
What is the exception for nonfeasance for utilities?
If the defendant is a utility, a duty is only owed to those that have a contractual relationship with D
If there is a blackout in a big city, does the electric company owe a duty to everyone who doesn’t have power?
No, unless they had a direct contract with the electric company
What is another name for the police duty to protect?
Public doctrine duty
What is the police duty to protect?
Police are not liable for failing to protect individual citizens unless:
- they undertake to act, and create reliance
- enlist the plaintiff for help, or
- increase the harm to the plaintiff
What other category besides police officers does the public doctrine duty also apply to?
Firefighters
What is the duty that providers of liquor have when there is injury from an intoxicated person?
- CL: no duty to those that are injured from intoxicated people
- Dramshop act: duty if they serve minors or someone that was already intoxicated
What is the reason the common law assigns no liability to providers of alcohol?
Because the voluntary consumption of the drinker is the proximate cause of the injury
Dramshop liability imposes a duty to exercise reasonable care not to sell liquor in two situations, which impose liability when?
- injuries that result from serving alcohol to a minor
- injuries that result from serving alcohol to someone the defendant knew or should’ve known was intoxicated
What is the purpose of the dramshop rule?
The unreasonable risk of harm in those two situations could be recognized and foreseen
What is misfeasance?
Affirmative risk-creating conduct that creates a duty from defendant’s negligent action
What is the liability in a misfeasance situation?
Liable for affirmative acts that create an unreasonable risk of harm
What is an example of misfeasance?
Shooting a gun in the middle of Time Square
Misfeasance can also include what?
Negligent omissions
Negligently failing to stop at a stop sign and colliding into the plaintiff is considered what?
Misfeasance
What is negligent entrustment?
Negligently supplying a potentially dangerous instrumentality to someone you know or should know isn’t fit to handle it
What is an example of a potentially dangerous instrumentality for negligent entrustment?
Car or gun
Once you have established negligent entrustment, how do you proceed with an analysis?
Like any other negligence case with all of the same elements
What is an example of negligent entrustment?
Giving the keys to your car to someone you know is drunk, and an accident occurs
What is the “Good Samaritan” rule?
Gives immunity to those that provide assistance in an emergency if the conduct was negligent, but not if it was reckless
How do slip and fall cases work?
P can show negligence by proving that D failed to exercise reasonable care through three ways:
- created and didn’t take reasonable action to abate a hazard
- discovered the hazard/should have discovered it, and didn’t take steps to prevent injury from it
- the mode/method of business made it foreseeable that someone else would create a dangerous condition, and D didn’t take reasonable measures to discover and remove it
How do you prove a defendant should’ve discovered a spilled substance for a slip and fall case?
Proving it had been there for a relatively long time and a reasonable person would have discovered or remedied it
If you can prove that a spilled substance was there for a fairly long time, what do the courts say?
The defendant was on constructive notice of the danger
If a substance is only spilled for a short period of time, is there liability for not discovering and remedying it?
Usually no, but after about 25 minutes, the courts say you should have discovered it
