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Question 0

What is the general rule for nonfeasance?

Answer 0

Traditionally there’s no duty to take affirmative action to aid or protect the plaintiff, control another, or intervene, unless an exception applies

Question 1

What is another word for nonfeasance?

Answer 1

Affirmative action

Question 2

What is the mnemonic to help remember the exceptions that apply to nonfeasance in tort?

Answer 2

PRC v SLC + PUBCARs

(same as Crim for beginning)

• Police
• Utility
• Business
• Criminal conduct
• Alcohol
• Reliance

Question 3

What are the two ways you have to help if you create peril?

Answer 3

• duty to rescue: for any conduct, even untortious that creates peril
• prevent further harm: applies if you caused the initial harm

Question 4

If you make a gratuitous promise to assist someone, is there liability for not doing the promise?

Answer 4

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)

Question 5

If you do start to rescue, what are the two views on your duty?

Answer 5

• 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

Question 6

What is the rule about reliance as an exception to nonfeasance?

Answer 6

If you create specific reliance that you will rescue, that creates a duty

Question 7

What is an example of reliance?

Answer 7

Someone calls you for help and you promise to be right there, but then don’t show up…. you had a duty

Question 8

What is the duty to protect others from criminal conduct?

Answer 8

If you become aware that a third person intends to do specific harm to the plaintiff, you have a duty to warn the P

Question 9

What are some situations where you would have a duty to protect a third person from criminal conduct?

Answer 9

• psychotherapist/patient
• custodian/prisoner
• school/student

Question 10

What is the famous case that relates to having a duty to protect a third person from criminal conduct?

Answer 10

Tarasoff where therapist had a duty when she knew her patient was going to harm another

Question 11

What is the split in the courts for a duty to protect another from criminal conduct?

Answer 11

• some courts: duty is only for readily identifiable victims

- other courts: all foreseeable victims

Question 12

What is the business duty to protect customers?

Answer 12

If there is a showing of prior similar incidents, there may be a duty to protect

Question 13

When do you often see the business duty to protect customers?

Answer 13

In parking lots of businesses

Question 14

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?

Answer 14

Yes. So the restaurant owner likely owed a duty to put in lights

Question 15

In what situations have courts found proprietors liable for intentional acts of third parties?

Answer 15

When those acts are reasonably foreseeable. This can happen even if the act has never happened before

Question 16

What is the exception for nonfeasance for utilities?

Answer 16

If the defendant is a utility, a duty is only owed to those that have a contractual relationship with D

Question 17

If there is a blackout in a big city, does the electric company owe a duty to everyone who doesn’t have power?

Answer 17

No, unless they had a direct contract with the electric company

Question 18

What is another name for the police duty to protect?

Answer 18

Public doctrine duty

Question 19

What is the police duty to protect?

Answer 19

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

Question 20

What other category besides police officers does the public doctrine duty also apply to?

Answer 20

Firefighters

Question 21

What is the duty that providers of liquor have when there is injury from an intoxicated person?

Answer 21

• CL: no duty to those that are injured from intoxicated people
• Dramshop act: duty if they serve minors or someone that was already intoxicated

Question 22

What is the reason the common law assigns no liability to providers of alcohol?

Answer 22

Because the voluntary consumption of the drinker is the proximate cause of the injury

Question 23

Dramshop liability imposes a duty to exercise reasonable care not to sell liquor in two situations, which impose liability when?

Answer 23

• 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

Question 24

What is the purpose of the dramshop rule?

Answer 24

The unreasonable risk of harm in those two situations could be recognized and foreseen

Question 25

What is misfeasance?

Answer 25

Affirmative risk-creating conduct that creates a duty from defendant’s negligent action

Question 26

What is the liability in a misfeasance situation?

Answer 26

Liable for affirmative acts that create an unreasonable risk of harm

Question 27

What is an example of misfeasance?

Answer 27

Shooting a gun in the middle of Time Square

Question 28

Misfeasance can also include what?

Answer 28

Negligent omissions

Question 29

Negligently failing to stop at a stop sign and colliding into the plaintiff is considered what?

Answer 29

Misfeasance

Question 30

What is negligent entrustment?

Answer 30

Negligently supplying a potentially dangerous instrumentality to someone you know or should know isn’t fit to handle it

Question 31

What is an example of a potentially dangerous instrumentality for negligent entrustment?

Answer 31

Car or gun

Question 32

Once you have established negligent entrustment, how do you proceed with an analysis?

Answer 32

Like any other negligence case with all of the same elements

Question 33

What is an example of negligent entrustment?

Answer 33

Giving the keys to your car to someone you know is drunk, and an accident occurs

Question 34

What is the “Good Samaritan” rule?

Answer 34

Gives immunity to those that provide assistance in an emergency if the conduct was negligent, but not if it was reckless

Question 35

How do slip and fall cases work?

Answer 35

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

Question 36

How do you prove a defendant should’ve discovered a spilled substance for a slip and fall case?

Answer 36

Proving it had been there for a relatively long time and a reasonable person would have discovered or remedied it

Question 37

If you can prove that a spilled substance was there for a fairly long time, what do the courts say?

Answer 37

The defendant was on constructive notice of the danger

Question 38

If a substance is only spilled for a short period of time, is there liability for not discovering and remedying it?

Answer 38

Usually no, but after about 25 minutes, the courts say you should have discovered it