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Torts II
Elon University School of Law
Katz, Howard E.

Torts II: Professor Katz: Spring 2013

· The “No Duty to Act” rule: general common law says one person owes another no duty to take active or affirmative steps for the other’s protection

o ∆s are liable for misfeasance—negligence in doing something active

o ∆s are not liable for nonfeasance—doing nothing

· Yania v. Bigan

o Yania jumped into a 16-18’’ deep trench filled with water 8’10’’ deep and drowned; his widow sued for wrongful death alleging that Bigan caused Yania to jump into the trench via taunting/provocation although Bigan made no physical impact upon Yania

§ Widow essentially alleges that Bigan deprived Yania of his volition and/or free will thereby compelling him to jump into the trench

o Court says that Yania was an adult in full possession of his mental faculties so taunting/enticement can’t deprive him of his free will and constitute actionable negligence; only applies to a child of tender years or someone mentally deficient

o Widow also alleges that Bigan was negligent in failing to rescue Yania from the water

§ Court says Bigan was under a moral but not a legal duty to rescue Yania because he was not legally responsible for Yania being in the position of peril

§ Yania undertook to perform an act which he knew or should have known was dangerous; the act caused his death, not Bigan’s failure to act

· Rocha v. Faltys

o Faltys/Rocha were both drunk and went to the top of a cliff to jump into some water; Rocha couldn’t swim but Faltys encouraged him to jump in so he did and then Rocha drowned

o Court said that the basic principle of legal responsibility that individuals should be responsible for their own actions and should not be liable for others’ independent misconduct bars liability for Faltys

§ An adult encouraging another adult to take part in a dangerous activity does not give rise to a legal duty

· Yania and Rocha state the same principle, but are different in that the ∆ in Yania was not actively participating in the activity the π died doing and the ∆ in Rocha was doing the same thing the π was doing when he died

· Misfeasance v. nonfeasance:

o City contracted with ∆ to dig wells in the road and ∆ left unlighted excavations at night, π’s carriage was drawn into one and he was injured

§ Misfeasance, not nonfeasance: “the action is brought for an improper mode of doing the work…it is doing unlawfully what might be done lawfully…doing something improperly without taking the proper steps for protecting from injury…the action is for doing what was positively wrong”

· Nonfeasance Rationales:

o People should not count on nonprofessionals for rescue

o The circle of potentially liable non-rescuers would be too large to identify

o Altruism makes nonfeasance a small problem because there are a significant amount of do-gooders in the world

§ Imposing liability for nonfeasance might actually reduce the amount of altruistic responses because it would deprive people of their altruism by making it seem like they were only acting to avoid liability

o People would avoid situations where they might end up having to act in a rescuing fashion because they wouldn’t want to have to act that way to avoid legal liability and then people in need of rescue would be less likely to get it

o Sometimes people purposefully put themselves in dangerous situations out of their own volition

· Possible exceptions to the No Duty to Act Rule:

o Helped cause—when a person knows or should know that his conduct has caused harm to another person or when a person has created an unreasonable risk of harm

o Statute—requiring a person to act affirmatively for the protection of another

o Undertook and worse off—starting to care for someone who is being harmed/has been harmed and then leaving them in a worse off position than they were before

o Defendant’s relationship with plaintiff

o Defendant’s relationship with bad-guy

· Walkulich v. Mraz—undertook and worse off

o Facts:

§ Two guys dared a girl to drink a quart of Goldschlagger for a prize; she did and lost consciousness

§ They placed her downstairs and saw her vomiting profusely and making gurgling sounds; they put a pillow under head to prevent aspiration and took off her vomit stained shit

§ They didn’t seek medical attention and prevented other from doing it either; their father ordered them to take her away so they took her to a friend’s house, then she was taken to the hospital and pronounced dead

o Court says there are sufficient facts to establish a cause of action based on ∆’s failure to exercise due care in voluntarily undertaking to care for decedent after she became unconscious

§ Rule: “one who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses”

o ∆s voluntarily undertook to care for the decedent after she became unconscious and then failed to exercise due care in the performance of that undertaking

§ Court says their actions “clearly demonstrated an undertaking concerning decedent’s wellbeing” so they “voluntarily assumed a duty to care for the decedent”

· Carried her downstairs, placed her on couch, observed her vomiting profusely and gurgling, changed her shirt, checked on her later, placed a pillow under her head

o Whether the ∆s performed their undertaking with due care is a question for the jury

· Restatement Third: an actor who undertakes to render services to another when the actor knows or should know that those services will reduce the risk of harm to the other has a duty to use reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without the undertaking or if the other person relies on the actor’s using reasonable care in the undertaking

o If the defendant discontinues his undertaking and leaves the victim in a worse position than existed before the defendant took charge, he is liable

· Podias v. Mairs—helped cause

o Mairs was driving drunk with Swanson and Newell as passengers when he hit a motorcyclist; they left the scene of the crime with the cyclist lying in the middle of the road after taking no action to help and making no calls to emergency responders, however they did make a ton of calls to other people; the cyclist was later ran over and killed

o Rule: ordinarily, mere presence at the commis

ork in the opposite, vice-versa fashion

o Riss v. City of New York

§ Linda Riss had been terrorized for months by a rejected suitor and had continually asked the police for help; the suitor threatened her with serious injury and death repeatedly; she became engaged to another man and during their engagement party the rejected suitor called saying it was her “last chance,”; she called the police and told them, but they did not act; the next day an assailant hired by the rejected suitor threw lye in her face, permanently blinding her in one eye, causing her to lose most of her sight in the other, and permanently disfiguring her

· Riss sued the police for failing to protect her from the rejected suitor

§ Issue: should the police be liable for Riss’s injuries because they didn’t protect her when she told them she was being threatened with physical harm/death and then she did suffer harm due to their lack of protection?

§ Court dismisses Riss’s claim on the grounds of government immunity and justifies its decision with a public policy rationale

· The police is meant to protect the public in general from external hazards and criminal wrongdoers, rather than specific people

· Protection is limited by community resources and legislative guidelines determining how the resources can be used

· If courts made a general duty of protection in tort law it would determine how limited police resources would have to be used/allocated

o The needs of police officers are often unpredictable, so this is irrational

o DeLong v. County of Erie

§ Ms. DeLong called 911 to get help due to an intruder in her home and was told police were on the way; the dispatcher sent police to the wrong address and she ended up being stabbed to death by the intruder

§ Ms. DeLong’s estate brought suit for wrongful death

§ Court said that when the police refuse assistance it’s an issue of how to allocate public resources and it should be left to the executive and legislative branches but in this case the decision had already been made to allocate resources to Ms. DeLong

§ Court said a special relationship existed between the city and the caller—Ms. DeLong—her plea for assistance was accepted, not refused, and thus required the city to exercise ordinary care in the performance of a duty it had voluntarily assumed—providing assistance to Ms. DeLong; it breached that duty by sending police to the wrong address and therefore in this case was not immune to tort liability

§ Rule: when a municipality voluntarily assumes a duty and negligently performs that duty, it can be held liable if its conduct increased the risk of harm to the defendant