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

Katz Torts II Spring 2013 Outline
Friday, January 04, 2013
3:20 PM
1.   Nonfeasance
·         General Rule of Nonfeasance
o    Under common law there is no general duty to help others, aid others, protect others from harms that the defendant themselves did not cause
·         In a lot of these cases there are a lot of situations where defendant was in a position to do something (even though they didn’t cause the problem) with a low burden
o    Will be looking for exceptions in our cases
5 Exceptions of Nonfeasance
1.      Helped cause (the peril)
2.      Statute
3.      Undertaking and worse off
4.      Prior Relationship between the plaintiff and defendant
5.      Prior relationship between defendant (“bad guy”)
6.      Joint venture (Katz's special)
·         Remember nonfeasance and all the exceptions only relate to the negligence element of duty
·         Helped Cause
o    If they helped cause the peril then they have a duty to go back and help
·         They have to act negligently or innocently
·         Have to prove incitement
·         Just because you know something bad will happen can't turn nonfeasance to misfeasance (a non duty to a duty)
o    Reminds us of drowning person hypo from last class
·         High foreseeability can't create duty by itself
·         If you start helping someone and then stop are you liable for harm?
o    Have to think if you had done nothing at all would they be worse off than if you had started to rescue them
o    In this situation the undertaking to help it makes the victim worse off than if they hadn't tried to rescue at all
From a Case:
o   Can't just say they caused it by putting the kid back with the father because that is the status quo
·         We have to find that they did something to make the situation worse
·         Negligent Entrustment Doctrine
o    Someone who is in control of a chattel and entrusts it to another when they know or should know it will be used in a dangerous way – they can be liable
·         What scenarios would this fit:
§  Giving a child a loaded gun
§  Letting a drunk person borrow your car
·         Where would we put negligent entrustment in our nonfeasance framework?
o    You helped cause the problem – you moved the situation along
·         Limits on how this applies
·         Even if you do fit it under subcategory of helped cause it doesn’t mean plaintiffs will automatically win
·         If there is an applicable statute that requires people in certain situations to
·         Said if statutes and laws make things illegal then over time it will change people's attitudes
o    Said this happened with Civil Rights and is now happening with gun control
o    So statutes affect our expectations
                 Undertook and Worse Off
o    they begin to do something or attempt to give aid and the plaintiff is worse off
o    If they start to take care of her then they can't injure her (or that will be misfeasance) or that would be negligent
o    They actively prevent other people from helping her
·         If you start helping someone and then stop are you liable for harm?
o    Have to think if you had done nothing at all would they be worse

se in fact is serious problem in many nonfeasance cases
o    But if they find duty then courts presume favor for plaintiff for cause in fact element
                 Contract and Duty
H.R. Moch Co. V. Rensellaer Water Co.  (deals with the contract (promise) creating the duty)
·         Facts
o    Water company made contract with city of Rensselaer for supply of water for term of years
o    Also to be furnished to residents at reasonable rates
o    Fire broke out and water Co. was notified of fire but didn’t supply adequate quantity and pressure of water to extinguish fire
o    Plaintiff who suffered damage sued because defendant failed to fulfill its contractual obligations with the city – which led to damage of plaintiff
·         What is argument for liability against the water company?
o    No traditional prior relationship here
·         But they promised to deliver water to city and we could argue that people in the city were 3rd party beneficiaries and therefore had rights under the contract
·         So it was for their benefit
·         Even if they could sue does this mean they took on risk of houses burning down or just if there was breach in contract and you had to go to other water supplier? – probably the latter