The Duty Requirement

Question 1

Harper v. Herman

Answer 1

A person has NO DUTY to act if there is no special relationship between the parties

• actual knowledge of danger is insufficient to est. liability in negligence

Question 2

Farwell v. Keaton

Answer 2

Extreme example of how a special relationship is formed

– if D voluntarily attempts to aid and takes charge and control of the situation he takes on responsibility and will be liable for failure to use reasonable care

where performance clearly had begun, there is no doubt of duty of care

Question 3

Randi W. v. Muroc Joint Unified School District

Answer 3

The failure to fully disclose OR misrepresentation by failing to disclose imposes a duty

Question 4

Tarasoff V. Regents of University of CA

Answer 4

D owes a duty of care to persons who are foreseeably endangered by known conduct

** if D knows the danger and victim

** if you have a belief that someone is making this threat to kill and there is imminent danger, you have a duty to warn
(subjective standard of knowledge of threat, victim must be reasonably identifiable)

– Physician-patient privilege ends where public peril begins

Question 5

Reynolds v. Hicks

Answer 5

• social hosts cannot be held liable by dram shop acts b/c it’s effects would be broad and unpredictable (policy)

Question 6

Strauss v. Belle Realty

Answer 6

• Duty is limited to those with privity relationship
• When someone’s negligence could result in a large amount of lawsuits, which may ruin an impt service (utilities), then it invokes policy bases for no duty

Question 7

Ames Good Samaritan rule

Answer 7

One who fails to interfere to save another from impending death or great bodily harm, when he might do so with little or no inconvenience to himself AND THE DEATH/BODILY HARM FOLLOWS AS A CONSEQUENCE OF HIS INACTION, he shall be punished criminally and shall make compensation

Question 8

Special relationships that impose duty (RSTMNT § 314A)

Answer 8

Common carriers, innkeepers, possessors of land who hold it open to the public, persons who have custody of another person under circumstances in which the other person is deprived of normal opportunities of protection
OR
if they take control of someone else’s situation (you’re in charge and take on duty)

– w/o special relationship, knowledge of danger alone does not create a duty

Question 9

The Duty Requirement

Answer 9

• A duty to exercise reasonable care exists with regard to causing physical harm
• specific relationships appeared to be the bases for imposing duties of care
• If one person is in circumstances and the circumstances would cause danger of injury to another, a duty arises to use ordinary care and skill to avoid danger

– Q of law; too much for jury to decide, judge has a better framework of policy considerations to know if duty should be enforced

Question 10

Commission v. Omission

Answer 10

– whenever we characterize D’s actions as inaction, we have a question of duty

Question 11

Voluntary Aid

Answer 11

voluntary aid is liable if

a) actor failed to exercise reasonable care to secure safety of the other OR
b) the actor’s discontinuing his aid leaves the other in a worse position than when the actor took charge of him

– duty if actor increases the risk of harm OR if others rely on the actor’s undertaking
Reliance OR Victim left worse off

Question 12

Commission v. Omission

Answer 12

• • whenever we characterize D’s actions as inaction, we have a question of duty
    - Act is warn, prevent danger or engage in some affirmative steps to help another
• Act/omission distinction is “standing still”

Question 13

Voluntary Aid

Answer 13

voluntary aid is liable if

a) actor failed to exercise reasonable care to secure safety of the other OR
b) the actor’s discontinuing his aid leaves the other in a worse position than when the actor took charge of him

– duty if actor increases the risk of harm OR if others rely on the actor’s undertaking
Reliance OR Victim left worse off

Question 14

Duty To Third Party

Answer 14

• (known)existence of third party must be known at the time of negligence; WITHOUT AN IDENTIFIABLE POTENTIAL VICTIM< THERE CAN BE NO DUTY TO WARN
• duty to prevent risk creation and inform possible third parties if risk is created

Question 15

Balancing Test for Duty To Warn Third Party

Answer 15

1) Foreseeability of Harm
2) Degree of Certainty that P suffered injury
3) Causal connection btwn D’s conduct and injury suffered
4) moral blame attached to D’s conduct
5) policy of preventing future harm (does the law recognize a policy of preventing future harm of the kind alleged here?)
6) the extent of the burden to D and consequences to the community of imposing a duty to exercise care with resulting liability for breach
7) the availability, cost and prevalence of insurance for the risk involved

Question 16

RSTMNT §311

Answer 16

One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such info, where such harm results to the other OR to such third persons as the actor should reasonably expect to be put in peril by the action taken

– failure to exercise reasonable care in ascertaining the accuracy of the info OR in the manner in which it is communicated

– absence of duty does not entitle one to speak falsely

Question 17

RSTMNT §311

Answer 17

One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such info, where such harm results to the other OR to such third persons as the actor should reasonably expect to be put in peril by the action taken

– failure to exercise reasonable care in ascertaining the accuracy of the info OR in the manner in which it is communicated

– absence of duty does not entitle one to speak falsely

Question 18

RSTMNT §7

Answer 18

courts can properly decide that there is no duty if they articulate policy reasons

Question 19

Vince v. Wilson

Answer 19

How far down the line can we sue?
- limiting the scope of liability to conveyance (how far removed is the act we are trying to assign a duty to)

*Negligent entrustment creates the unreasonable risk and it happens WHEN THE GOODS ARE CONVEYED

** distinctions btwn lending, leasing, cosigning, or providing funds aren’t important to the liability argument

Question 20

Situations in which duty might be an issue

Answer 20

(If you see these, you will need to say about about duty)

• Act/omission distinctions
• Special Relationships (Harper)
• situations in which third parties are injured (Tarasoff, Randi W)
• Situations where assigning a duty of care would have large, complex implications for the public (strauss, reynolds) – courts will find justification for the decision they want
• How far down the line of negligence can we sue? (vince)