Course Outline - Torts - Duty Of Care

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Course Outline - Torts - Duty Of Care Powered By Docstoc
					Thursday, July 21, 2005

Chapter VIII – Duty of Care.
Law
A person must build her case upon a duty owed to herself and not to another. ∏ must be a foreseeable ∏. ∏ must be within the class of people who foreseeably will be injured as a result of ∆’s act. A person is guilty of negligence and therefore liable to pay compensation for physical damage to the person, or property, (or fetus – and losses surrounding birth can donception)), caused by affirmative negligent conduct on his part. If you’ve taken affirmative action, then have duty to do it reasonably

Notes / Examples
Ex: (Palsgraf) The employees of the RR had a duty of care to the passenger and his luggage but not to ∏ who was nowhere close.

Privity of Contract
Nonfeasance  ∆ had done no more than make a promise and break it  Breach of K only; no tort action; EXCEPT o Common carriers of other public utility when they fail to serve the public o Fraud/misrepresentation/deceit: ∆ makes a K with no intentions of performing Misfeasance  ∆ attempted performance but does the wrong thing  failure to perform with due care contractual obligations owed to one may give rise to violation of legal duty Election and Gravamen  Election: ∏ gets to choose whether to bring tort or K claim  Gravamen: Court decides based on essential facts or gist Duty to Public  Where a party becomes responsible to the public  by undertaking a public duty,  he is liable

Privity: contact, connection or mutual interest between parties Ex: promise to hire ∏ if he comes up to Cinci. ∏ does, falls ill, and ∆ does not hire him. Action on K but no tort action.

Ex: Common Carrier negligent injury to ∏.

Gravamen: "to weigh down," the basic gist of every claim (cause of action) or charge in a complaint filed to begin a lawsuit

Ex: ∆ contracted with postmaster general to keep mail coaches repaired. Driver of one gets injured because of lack of repair. Driver sues… No liability. Driver’s duty was not to the public or driver.

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1.  

Though the injury may have arisen from the negligence of his servant or agent. Ex: ∆ contracted with postmaster general to keep mail coaches repaired. Driver of one gets injured because of lack of repair. Driver sues… No liability Ex: (MacPherson) ∏ sold defective Buick from dealer. Dealer bought it from Buick. Wheel collapsed injuring ∏. Wheel bought from supplier. Intended users were public and Buick had responsibility for finished product. Buick can’t say: my K was with dealer; or I got the wheel from supplier. Non Ex: if A leases to B a tumbledown house. C is injured in house. C can’t sue B – A had duty to fix it. Ex: A leases a bldg from B for once for public entertainment, C is hurt – B is liable because injury is foreseeable and B had duty. Ex: ∆ who undertakes to make repairs owes duty to use care to those who may be foreseeably injured in case the repair is negligently made.

Old rule: The right to recover is confined to those who enter into a K. New Rule – based on foreseeability and not privity: 1. In case of negligence, an mfg is liable to the intended end users of the finished product if danger is foreseeable.  Foreseeable danger if product is not built right  If consequences can be foreseen, that creates a duty 2. In case of service contracts, same rule applies

Duty to perform One does not have a duty to perform except: 1. If a ∆ starts working on an injury, then he has a duty to go forward and complete it. a. If you start a rescue, have duty to finish If there is a special relationship between ∆ and ∏ In case of special relationships, element of control is vital a. Employer (employee not able to look after himself) b. Ship masters c. Temporary custodian d. Occupiers / Entrants onto land e. Husband and wife (Spouse Duty) i. Requires particularized foreseeability not general foreseeability 1. spouse has Particular knowledge, or 2. spouse has special reason to know that 3. particular ∏ or identifiable class of ∏s 4. would suffer particular type of injury f. Parent & child g. Joint venturers – Engaged in same activity h. Contract Obligation i. If failed to exercise reasonable care, liable for:

2.

Ex: If I see someone drowning, I don’t have to jump in and save him Ex: Dr. does not even have to render help in case of emergency …Ex: But if I do, I have to continue the rescue. Ex: affirmative duty to come to friend's aid, he had a special relationship with the deceased, he knew or should have known of the peril the deceased was in, and he could have rendered assistance without endangering himself Ex: sea master required to make reasonable efforts to rescue seaman overboard Ex: School grade teacher required to obtain medical help for a pupil

Ex: (JS. MS.) Spouse had reason to suspect (prior husband history)

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3.

4. 5. 6.

failure to exercise increases risk of such harm harm is suffered because of the ∏’s reliance upon the undertaking ii. Examples: 1. Places of public accommodations 2. Common Carriers, 3. Inn Keepers, 4. public utilities ∆ is the invitor or master or the controller of the instrumentality caused harm regardless of the source of harm (even if ∏ himself caused harm) a. (∏ recovers for aggravation not whole harm) b. Occupier of land and entrant. If ∆ himself negligently injures ∏, ∆ is under duty to take affirmative reasonable action to aid him Hit and Run – statutes a. Violations are negligence per se ∏ detrimentally relied on ∆’s voluntary undertaking

1. 2.

and know that husband was sexually abusing neighbor’s daughter and did not say anything (to him, to kids, to parents)

Ex: 2 people driving around, gang starts beating them up, one escapes, but does not call to get his friend medical aid – He had duty (as co-venturer)

Ex: Hotel employee required to help guest escape fire. Common Carriers under duty to use reasonable care to aid or assist passengers Ex: (L.S. Ayres) ∆ is a store. ∏ got finger stuck in escalator. ∆ unreasonably delayed stopping the escalator aggravating harm. ∏ recovers for aggravation

7.

8.

Spouse knowledge of sexual abuse a. actual knowledge special reason to know b. of the likelihood of his or her spouse engaging in sexually abusive behavior c. a spouse has a duty of care to take reasonable steps to prevent or warn of the harm d. Breach is proximate cause of the resultant injury: the sexual abuse of the victim Doctor / Therapists a. If determines, or reasonably should have determined, that a patient poses a serious danger of violence to a reasonably identifiable party, he has a duty to exercise reasonable care to protect foreseeable victims – He should: i. Hospitalize (or initiate proceedings to) the patient

Ex: If you hit someone with car, can’t just keep on driving Ex: Grandparents promised father to safeguard children from mother with mental illness – mother killed children – grandparents liable Ex: man fell ill at work. Co-worker called wife – she couldn’t come to pick him – coworker promised to call for help but didn’t – man had heart attack – coworker liable. Non Ex: ∏ sued organizer of outdoor basketball tournament for failure to warm of approaching thunderstorm. No liability since no

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9. 10.

11.

12.

13.

ii. Make reasonable attempts to communicate threat to person, police, sheriff, or state police. iii. If threat is to minor, he should tell: child services, custodian, parent if ∆ does something that he doesn’t have a legal duty to do, then he creates a duty Rest 321 - Duty To Act When Prior Conduct Is Found To Be Dangerous a. If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk, he is under a duty to exercise reasonable care to prevent the risk from taking effect. b. The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk. Rest 322 - Duty To Aid Another Harmed By Conduct a. If ∆’s act caused harm to another as to make him helpless and in danger of further harm, he is under a duty to exercise reasonable care to prevent further harm Rest 323 – Negligent Performance of Undertaking To Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if i. his failure to exercise such care increases the risk of such harm, or ii. the harm is suffered because of the other's reliance upon the undertaking Rest 2nd -§324 – Duty of one who takes charge of a Helpless ∏ a. If you undertake to aid or protect a helpless ∏, you are liable for any bodily harm caused by: i. Failure to exercise reasonable care to secure safety of ∏ ii. Discontinuing aid leaving ∏ in a worse position.

duty owed – ∏ did not entrust himself to protection of ∆.

Ex: ∆ looks, see no one and hits golf ball, but then a person pops head on course, ∆ has duty to yell “fore”.

Ex: Hit and Run driver has duty to aid victim

Duty to take affirmative action to control conduct of 3rd person 1. ∆ has special reln to ∏ that requires him to exercise affirmative care to protect him against the conduct of a 3rd person 2. ∆ has special reln to 3rd person that gives him power to control over

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that person’s actions against ∏. Examples: a. Parent / Child b. Employee / Employer c. Auto owner / driver d. Persons who took charge of dangerous people i. Wardens, guards / criminals ii. Hospital / patients with dangerous diseases Rest § 324A – Liability to 3rd person for negligence performance If a harm is caused by ∆ undertaking of a service on behalf of P1 for the protection of P2 or property, ∆ is liable if he does not exercise reasonable care when: a. Failure to take reasonable care increases risk of harm to P2 b. ∆ undertakes duty owed by P1 to P2 c. Harm is suffered because P1 or P2 relied upon ∆.

Ex: You help someone cross the street, but neglect to look both ways, then increasing the risk of harm

Ex: You offer to do something for someone, and you do it negligently or fail to do it, the liable.

Ex: Common carriers – prevent attacks or thefts against passengers An attorney may be liable for damage caused by the negligence to a person intended to be benefited by his performance irrespective of any lack of privity of contract between the attorney and the party to be benefited Ex: drunken employee killed ∏ in car accident after being told to go home Ex: hotel had duty to control altercation which caused injury to ∏. Ex: Dr. failed to tell patient’s family (∏) that patient had contagious disease Mental Distress & Resulting Injuries - Physical manifestation 1. MI - Emotional distress has to have physical manifestation: o If a definite and objective physical injury is produced o as a result of emotional distress i. of normal persons absent ∆’s knowledge of any ∏’s unusual sensitivities o proximately caused by ∆’s negligent conduct, o ∏ can recover i. ∏ has burden of proof that physical harm is natural result of fright 1. can be concluded by jurors after sufficient

Ex: at beach, mother (P1) has duty to protect child (P2). Because of big wave, mom (P1) ends up in an emergency situation. Lifeguard (∆) comes along and tries to save child (p2), LG is liable to P2 for any harm if performs without reasonable care. ∆ steps into P1’s shoes

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o o o

testimony ii. If ∆ knows of hypersensitivities of ∏, then ∆ responsible for all damage iii. If ∆ does not know of hypersensitivities of ∏, then liable for what reasonable person would’ve suffered. even if there was no physical impact at the time of the mental shock. Exceptions (no physical manifestation required): i. Mishandling corpses 1. liable to one with right of disposition ii. Death Telegrams (minority) iii. ∏ narrowly escaped imminent and serious harm to his physical well being

Ex: In cases of wills, attorney is liable to affected beneficiaries. Non Ex: attorney ∆ employed by mortgage failed to follow procedure. Buyer sued attorney – No privity… Attorney’s duty, in this case, is to his employer. Ex: ∏ Creditor assigned claim to collection agency. ∏ allowed to sue attorney for negligence (∏ is the beneficiary in the relationship) Ex: cases involving beneficiaries of wills. Ex: attorney’s work product is primarily for the benefit of the 3 rd party. Few courts still use the old rule – that is: Impact required. But they

3.

Zone of danger o If ∏ is within zone of danger of risk, AND o Reasonably feared injury from risk o ∏ must show proof Bystander - Emotional distress caused by ∆ injuring a 3rd party – THING RULE a. A ∏ can recover damages for emotional distress b. caused by observing c. negligently inflicted injury on a 3rd person i. victim is not cause of conduct d. If and only if i. ∏ is closely related to injury victim a. blood or marriage ii. Is present at the scene at the time OR has contemporaneous sensory perception of event iii. Is aware that the event is causing injury to victim e. As a result suffers serious emotional distress i. Beyond what which would be anticipated in a disinterested witness ii. Not abnormal response under circumstances Different Rules for different Emotional distress:

4.

Ex: pedestrian almost struck by automobile

Ex: (Daley) Fright caused by explosion caused nervousness, sudden loss of weight, neurosis to ∏ - but there was no initial physical impact. ∆ liable. Physical: in this context means “susceptible of objective determination” Ex: ∏ suffered severe shock when she saw the remains of a decomposed snail in the ginger beer she just drank from. Beer maker had a duty of care – he is liable.

4.

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a.

The Dillon Rule i. Foreseeability – court takes into account: 1. was ∏ located near scene as opposed to remote 2. shock resulted form a direct emotional impact upon ∏ from sensory and contemporaneous observance as opposed to learning about it later? 3. ∏ and victim closely related as opposed to absence of relationship ii. Case by case basis b. The Thing Rule a. Can recover for observing negligently inflicted injury to 3rd person - if: i. ∏ is closely related to the injured victim ii. ∏ is present at the scene of the injury producing event at the time it occurs AND is then aware that it is causing injury to the victim; iii. as a result suffers serious emotional distress . . . beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances b. Zone of danger iv. ∏ in zone of danger v. ∏ did not suffer injury from impact (but was placed in jeopardy of harm) vi. ∏ did suffer physical injury as result of emotional trauma c. Physical Impact vii. If physical impact, then can recover for emotional distress viii. ∏ has to be in zone of danger

Ex: prevents propose cremation; mutilates or operates upon. Ex: Serious mental distress arising from fear of developing cancer where the fear is reasonable and causal related to ∆’s negligence.

Non Ex: (Thing) Mother rushes to sight of accident where son was hit by car, she sees him on ground full of blood and thinks he’s dead and suffers severe emotional distress. ∆ not liable in this case because mother did not witness the accident – she was not there

5.

Unborn Children - 869 o A child viable in utero, o if injured by tort, o should be allowed to sue o when born o some courts allow action for unborn if fetus was viable

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o

at time of injury Or as allowed by wrongful death statutes

∏ alleges ∆’s wrongful adversely affected ability to produce normal children 6. Wrongful death / Wrongful life o May recover: a. Extraordinary medical expenses attributes to his affliction i. By infant or parent ii. Incurred during infancy and ii. Infant a. during his majority o May NOT recover general damages for: a. Emotional distress OR b. Emotional distress for impaired childhood Wrongful life: o action by infant – “but for” dr. negligent advice or treatment, child would’ve been born normal o absent you’re negligence, I wouldn’t be here Wrongful birth: o action by parents - negligent advice by Dr. deprived them of choice of avoiding conception or terminating pregnancy Pure Economic Loss Robbins: o A tort to the person or property of one man o does not make the tort-feasor liable to another o merely because the injured person is under a contract with that other unknown to the doer of the wrong Rule: Cannot recover of economic loss without physical damage to something you have proprietary interest in. o There could be no recovery for economic loss absent physical injury to a proprietary interest. o Justifications:

If child is not born alive, some states reject cause of action, but most say: if fetus is harmed after point of viability, then have a wrongful death claim (Viable: point at which fetus can survive on is own outside mother)

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i. Liab. extend too far if allow pure econ. loss w/o phys. damage ii. Pragmatic to limit where phys. conseq's like prox. cause of neg. iii. Bright line rule good where benefit of predictability high instead of going case by case (majority) iv. First party ins. for econ. loss lwr than 3rd party ins. b/c not det. who's @ fault but prob. b/c may want people causing trouble to pay & want more pain & suffering from 3rd party ins. v. Bright line rule unfair @ the margin but worth it if take all into consid.

Reasons (historical): o Fetus did not have separate existence from mother (proved wrong by science) o Difficult to prove causation in fact – science now helps but not completely. Ex: Can not prove that a trauma to mother causes Down’s syndrome in child. o Damages too speculative: How can jury estimate earning power? o negligent caesarean – child had birth difficulties producing brain damage o Wrong Rh-type blood transfusion to a 13 yr old, resulted in injury to child yrs later

(different from cases where a negligent injury causes normal fetus to be born in impaired condition) Courts limit recovery to extraordinary medical expenses. Most courts reject wrongful life claims Costs of raising a healthy child are not recoverable unless you can show that they only reasons you didn’t want children is because you couldn’t afford t raise them.

Ex: (Robins) ∏ chartered a steamboat. ∆ damaged propeller of steam boat. Boat could not leave dock for 2 weeks. ∏ can not recover for pure economic loss.

Ex: You damage my boat, as result can’t use boat for my purposes, then can recover for econ losses. Ex: You damage my car, I have to take to shop and pay for repairs. They you are liable for econ losses.

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Ex: You act negligently, causing losses of pinky finger, can’t work and loose wages, can recover for lost wages. Old sword that may be picked by a ∏ (unsuccessfully though – rule is well established)

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