Duty

IF DUTY Does Defendant have duty to exercise reasonable care to protect this Plaintiff from this harm? RULE: Duty to exercise reasonable care to protect all persons from all types of harm. Exceptions to general rule: NO DUTY TO CLASS OF PERSONS ♦ UNFORESEEABLE PLAINTIFFS Persons whom the Defendant could not have foreseen injuring at the time he acted. Split in jurisdiction: 1. Cardozo Rule: No duty. 2. Andrews Rule: Duty to all injured. Palsgraf v. Long Island RR: man being helped onto train dropped package wrapped in paper; package contained dynamite; explosion knocked over scale several feet away injuring Plaintiff waiting on boardwalk. Rule: No liability for injuries of woman who was outside the ―orbit of [foreseeable] danger.‖ ♦ INJURED RULE: Bystander has no duty to take an affirmative action to aid Plaintiff, unless Defendant:  Has SPECIAL RELATIONSHIP WITH PLAINTIFF, requiring him to exercise affirmative care to protect Plaintiff from harm—relationship of dependence. Examples: o Business invitee.. o Employer and employee, when acting in course of employment. o Common carrier and passenger. o Temporary legal custodian and ward. o Husband and wife; parent and child. L.S. Ayers v. Hicks 1942: Kid fell on escalator and got hand stuck; store owner was not negligent in operation or installation of escalator, but was negligent in unreasonably delaying to stop escalator, thus aggravating injury.  Defendant or his instrumentality CREATES DANGEROUS SITUATION OR INJURES Plaintiff. o If you create a dangerous situation you have a duty to protect other from harm by using reasonable care (i.e. if you are driving a hit a cow, killing it. You cannot just leave the seen for someone else to hit the cow. You have to call the police or move the cow)  VOLUNTARILY BEGINS AID, then he must exercise reasonable care to aid. → Duty can terminate as long as don’t leave injured in worse condition.  Majority: You can terminate you aid so long as you do not leave the person in a worse condition than you found him.  PROMISES AID on which Plaintiff relies to his detriment. Example: Women who relied on promise of sheriff to warn her of the release of dangerous inmate whom she had testified against; no inform; woman killed. Has SPECIAL RELATIONSHIP WITH ONE WHO CAUSES INJURY, requiring him to use reasonable care to control actor’s conduct and prevent injury to others, when he is aware of the potential danger—relationship of control. Examples: o Parents of dangerous children. o Persons taking charge of lunatics or criminals. o Wards with contagious disease. o Wife to girls spending time with known sexually abusive husband. o CA: psychiatrist (attny) to warn potential victim, when patient expresses intention to harm an identifiable victim. J.S.+ M.S. v. R.T.H. 1998: Defendant’s husband sexually abused two neighbor girls in barn several times over a year; Wife admitted to knowing of her husband’s proclivity for young girls. Rule: When spouse had actual knowledge or special reason to know of likelihood of spouse engaging in sexually abusive behavior against a particular person, she had duty to take reasonable steps to prevent or warn of harm. Tarasoff v. Regents of UC 1976: Patient told psychologist that he planned to kill old love interest; Psychologists detained patient for a while and then let him go without warning intended victim; patient murdered. Rule: Psychologist in type of special relationship to patient that he could control foreseeable behavior against a reasonably identifiable victim.  ♦ UNBORN CHILDREN Former Rule: no duty to unborn children. Modern exceptions: 1. Injury to fetus, later born alive—Duty of reasonable care to child/parents. 2. Wrongful Death of Fetus—Duty of reasonable care to parents. Duty extends to: * Majority: Viability * Minority: Conception * Minority: Birth Endresz v. Friedberg 1969: Mother injured in car accident denied recovery for still born twins. Rule: Defendant’s duty did not begin until twin’s birth. 3. Wrongful Birth: Negligence action brought by PARENTS for birth of disabled child. Majority: Extraordinary expenses. Minority: Extraordinary expenses plus emotional distress. Minority: No recovery. 4. Wrongful Life: Negligence action brought by disabled CHILD for his own birth. Majority: No recovery. Minority: Child can recover extraordinary expenses. Procanik v. Cillo 1984: Infant sues MD for negligence in misdiagnosing German measles immunity in mother, which denied her the choice to abort. Rule: recovery for special expenses in caring for child allowed because calculable damage separate from question of value of life with or without defect. ♦ NON-CLIENTS Rule: Duty only to client and those who client intends to benefit (Ex. Testate beneficiaries). Clagett v. Dacy 1980: Plaintiffs were high bidders in foreclosure sale which attorney screwed up twice; Plaintiff lost potential profit in resale of property. Rule: Attorney, hired by mortgagee to get high price for property—interests of employer conflicted with those of bidders who sought lowest price. NO DUTY FOR TYPE OF INJURY ♦ EMOTIONAL HARM ALONE HARM DIRECTED TOWARD PLAINTIFF: Rule: No duty for bystander to take an affirmative act to aid the Plaintiff, unless: 1. Distress, held against standard of reaction of normal person, plus objective physical manifestation of injury or consequence, OR  Daley v. La Croix 1970: Two plaintiffs claim ED in response to electrical explosion in home after Defendant struck pole. Rule: Need distress and physical consequence. Court finds manifestation of injury in neurosis and nervousness, aggravated by event. The physical consequences must flow from the distress. The P has the burden of proof that the physical harm is the natural result of the fright proximately caused by the D conduct. (Thin Skin Rule: There is not recovery for hypersensitive people where a normal person would not be disturbed) 2. CA/Minority: Severe distress and high likelihood of stress. HARM DIRECTED TOWARD A THIRD PARTY Rule: If emotional distress is suffered at the shock of seeing injury to a third person, jurisdictions require Plaintiff to meet above requirements plus one of the following: ▪ Plaintiff must be within the zone of physical danger. ▪ Loss must be foreseeable (―direct victims‖). Molien v. Kaiser 1980: Wife negligently diagnoses with syphyliss; MD advised Plaintiff to have husband tested; resulting strife caused divorce. R: Husband allowed to recover for ED because he was a reasonably foreseeable direct victim of MD’s negligence. ▪ Loss must be foreseeable, AND ◦ Plaintiff must suffer shock from contemporaneous observation. ◦ Plaintiff must be closely related to third party. Thing v. La Chusa 1989: Sister who saw brother rolled over by car allowed to recover even though out of zone of danger, but mom who did not see or hear the crash when it happened denied recovery. ▪ No recovery at all for ED resulting from observing injury to third party. DUTY TO EXERCISE SOMETHING LESS THAN REASONABLE CARE ♦ AUTOMOBILE GUEST STATUTES Rule: Duty to guest is only to avoid recklessness driving (aggravated misconduct). Negligence Objective standard of appreciation of risk No knowledge of what should have been aware. Recklessness Appreciation of risk subjective to Def. Conscious disregard of high probability of risk of harm (still lower than substantial certainty of risk in intentional torts) ♦ OWNERS AND OCCUPIERS OF LAND MAJORITY (Traditional Rule): Duty depends on the status of the Plaintiff: 1. UNKNOWN ADULT TRESPASSERS generally—no duty in negligence. 2. KNOWN TRESPASSERS, TRESPASSERS IN FREQUENTED AREAS, LICENSEES  Active Conditions (Active machinery, railroad):  Majority: Reasonable care  Minority: Avoid recklessness. Licensees: Persons permitted on premises for business purpose; social guests; police and firemen.  (trap) Passive, concealed, dangerous conditions of which owner is aware—Duty to warn.  Obvious, passive dangers—No duty. 3. Business Invitees—duty to exercise reasonable care (also affirmative care). MINORITY: Several jurisdictions require reasonable care toward licensees as well. CALIFORNIA: reasonable care toward all. Q1 Your first question is what is the status of the person? Q2 What duty is owned to them? Q3 Was the duty met under the circumstances? TRESPASSING CHILDREN 1. 2. 3. 4. There is liability if there is an artificial condition and; Children are likely to trespass and; There is a risk of death or serious bodily injury and; Burden of safety id slight compared to the risk. Defenses Butterfield v. Forrester -- D placed pole along road with space to go through. P was riding extremely fats and hit the pole. Court ruled that P contributed to the negligent by riding to fast. Refused any recovery. If he had used ordinary care he would have seen the pole. Contributory Negligence: Comparative Negligence: (he does not think this is fair) Last Clear Chance: entitles P to full recover if the D had last clear chance to avoid the recovery. It was all based on timing. o Does not take into consideration relative fault. MCINTYRE V. BALENTINE – P ENTERED HIGHWAY AND WAS HIT BY D. THERE WAS DISENTION ONM FACT. THEY WERE TRYING TO ESTABLISH LAST CHANCE RULE. Primary a of r = df was not negligent b/c he owed no duty to pl. Secondary a of r = establishes a breach of a duty owed by df to pl.