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Torts II
Elon University School of Law
Grant, Helen

Elon Law: Professor Grant–Torts II Outline–Spring 2012

January 24, 2012

-Is there a duty of care?

-Is there a duty of care that the def. will owe the standard of the reasonably prudent person in the circumstances (subject to exceptions).

Duty Owed?

-Examine the category of the case

Proximate Cause?

-Examine facts of the case

Heaven v. Pender

-”The proposition is that whenever one person is by circumstances placed in such a position with regard to another, that anyone with ordinary sense (ie reasonably prudent person), would at once recognize that if he did not use ordinary care and skill in his own conduct, with regard to those circumstances, then he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

Duty and Limitations

-A person owes a duty of reasonable or ordinary care to everyone in the world, who they can foresee may suffer personal injury or property damage, as a consequence of the acts that they undertake. (Misfeasance/positive act).

**-Limited Categories-where no duty may be owed**

-Non action (nonfeasance/omission )

-Emotional Harm

-Pure Economic Harm (hard to recover)

-Certain other special categories (wrongful birth/wrongful life, etc)

Misfeasance v. Nonfeasance


-A positive act (a person actually did something)


-an omission (no act)

Yania v. Bigan

-One neighbor entices the other to jump (positive act v. nonfeasance)?

-Landowner/business invitee failing to warn of the danger

-Failure by one to rescue the other.

-Court ruled that there was no duty to rescue.

-When theres an open/obvious danger, theres no duty to warn others against it.

Nonfeasance and the “No Duty” Rule

-General rule: The law does not impose a duty to act in cases on nonfeasance

-EXCEPTIONS: 1) Defendant stands in special relationship to the plaintiff; 2) defendant voluntarily assumes duty to act 3) Def. creates a situation of danger

Exception One: A special relationship exists

Most Recognized Special Relationship that require a Duty of Care

-Common Carrier & passenger

-Innkeeper & guest

-Business & customer (inviter-invitee)

-Family Relationship

-Employer & Employee

-School & Student

-Custodial Relationships (ie, prison & prisoner)

**NOTE: Extent of the duty owed is limited**

Restatements 2nd, Sect. 314(A):

(1) “a common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others

2. An innkeeper is under a similar duty to its guests

3. A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation

NOTE: common carrier is a bus, train, etc.

Exception Two: Voluntarily Assumes Duty to Act (Restatements 2nd, Sect 324)

-”One who, being under no duty to do so, takes charge of another who is helpless to adequately aid or protect himself, is subject to liability to the other for any bodily harm caused to him by

a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actors charge

b) the actor discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

Lundy v. Adamar of New Jersey

-Case where man has heart attack in casino

-They argue the innkeeper exception under sec. 314

-Courts clarifies and says that their duty extends to providing adequate care that they could reasonably foresee. HOWEVER, you don’t have to safeguard against each and every single thing. That would be unreasonable. **you have to do what you can within your capabilities** Essentially, no less, no more than what you can reasonably foresee

When evaluating the situation, ask yourself:

-Is this a Misfeasance or nonfeasance?

-Nonfeasance? Okay, then there is normally no duty;

-BUT, is this an exception (relationship, voluntarily acted, etc)

January 26, 2012

-When you are under no duty to act, but you take charge and act, then they are subject to liability to the other (^^ Restatements sect. 324)

el user


February 2, 2012

Emerich v. Philadelphia Center for Human Development

-Court in PA says theres no duty on behalf of the health care professional to report

-Here, its not the duty of care owed to the patient but to the third party

Special Relationship-Extended Duty to Control/Warn

-Mental Health Worker–Patient=Special Relationship

-Extends to include safety of third parties


-Determines or pursuant to the standards of the profession should determine, patient presents a serious danger of violence to another.

-Obligation to use reasonable care to protect the intended victim against such danger.

Limitations on Duty:

-Determining danger per the standard of the profession

-Specific and immediate threat of serious bodily injury

-Victim be specifically identified or reasonably identifiable

-Warning to be least expansive based on the circumstances

HYPO: Sixteen year old boy has had a history of violence. He has a propensity for hurting kids younger and weaker than he is. He has been treated by a psychologist for years. Never deemed “cured.” he is kicked out of high school for getting in a knife fight during his senior year. He is living home with his parents. Despite this, his parents let him come and go as he pleases, even though there are many young kids in the neighborhood. One day he goes and severely beats a 12 year old boy. Duty from parents to protect the 12 year old?

Duty to Warn and Special Relationships

-Doctor-Patient Relationship extends to certain third parties

-Patient poses physical danger to foreseeable third party victims

-Contagious diseases-warn foreseeable third party victims.

-Non contagious disease–warn foreseeable third party victim??

**Depends on the characteristic of the illness**