Brief Outline 2nd Semester
Duty-
1. If there is a duty of care, then the Δ owes the standard of a reasonably prudent person in the circumstances subject to exceptions. Reasonably prudent person under the circumstances
2. Special Relationship- the extent of the duty is limited.
§ Common carrier-passenger
§ Innkeeper-guest
§ Business-customer (invitor-invitee)
§ Family relationship
§ Employer-employee
§ School-Student
§ Custodial relationship
3. Voluntarily Assumes a duty to act
§ 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
-failure of the actor to exercise reasonable care to secure the safety of the other while in the actor’s charge, or
-the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position that when the actor took charge.
4. Defendant creates a situation of danger
§ Defendant’s negligence creates a situation of danger and places the pl. in a position of peril, duty of care is owed.
§ Includes the injured rescuer unless he acts recklessly or rashly.
§ Def. may even be liable if the original act of the def which created the peril was not negligent
Exception:
· Firefighters Rule: No duty owed for injury caused to professional rescuers in respect of the negligent conduct that creates an occasion for their work.
Exceptions:
o Not part of an emergency
o Injury results from dangers different to those that are typically faced by the police or firefighters’ work.
o A landowner who conceals or lies about a danger.
5. Duty to Control/Warn
· Generally no duty to control another’s actions but these are exceptions stemming from special relationships.
a. Mental healthcare workers: duty to control/warn of specific, immediate threat directed towards a specifically or reasonably identifiable victim.
-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.
b. Physician patient- extends to “certain 3rd parties.
i. Contagious disease- warn the foreseeable victim
ii. Non-contagious disease- maybe warn depending upon the circumstances.
c. Parent/child
d. Employer-employee
e. Custodian-person in custody
f. Landowner-invitee
g. Chattel owner- chattel user
6. Duty of landowners to people on their land.
A.
Applies only to the condition of the premises not the activities on the land
Trespasser
· Duty to refrain from willful or wanton injury upon trespasser
o Known of frequent trespassers: (knows or has reason to know) warn of concealed (artificial or hidden) dangers on the premises of which the land possessor had knowledge & pose serious risk of injury or death.
¤ child trespassers: artificial nuissance
B. Invitee
· Duty to exercise reasonable care with respect to risks the land possessor knows or has reason to know or should know with reasonable inspection.
C. Licensee
· Duty to use ordinary care to warn about or make safe a danger (artificial or natural) that the owner knows but licensee does not know.
D. 3rd Party Criminal Assailants
Generally no duty on landowners to protect customers from the criminal acts of 3rd parties.
Ø Exception Approach #1: Prior similar incidents?
Ø Exception Approach #2: Totality of the circumstances? Approach #1 plus nature/character of the business and its location.
7. Duty of reasonable care to everybody in the world who they can foresee may suffer personal injury or property damage as a consequence of the acts they undertake (misfeasance/positive act).
A. Non action (nonfeasance/omission)- no duty owed.
B. Pure Economic Harm-generally no duty
Ø Exception: Special relationship- special training or special activities has reason to know that a specific person or group of persons had reason to know that a specific person or group of persons would be economically harmed.
èException: “particular foreseeability” Minority
As to type of person, certainty of preces, approximate numbers of those in the class and type of economic expectations that would be interrupted
C. wrongful birth/wrongful life. No duty owed.
D. Emotional Harm Duty owed.
1. Duty is owe
s of the product
2. Causes
▫ Actual
▫ Proximate
3. Damage
▫ Physical harm
▫ Property damage
4. Defendant = Seller
5. Plaintiff= user / consumer
6. No substantial change to the product.
b. Defenses?
Assumption of Risk, majority of jurisdictions use comparative fault.
I. Intentional Torts
A. Trespass to the Person
1. Battery
i.
Elements of Battery
1. Contact caused by the defendant;
2. Contact is harmful or offensive; and
3. Contact is intentional.
Defendant’s act causes harmful or offensive contact with the plaintiff’s person
ii. Elements
v Contact caused by the defendant;
v Contact is harmful or offensive; and
v Contact is intentional.
iii. Intent
§ Definition: purpose (desire) to cause unpermitted contact;
or knowledge to a degree of substantial certainty will cause unpermitted contact.
§ Do not need to foresee the specific harm/offense that results
§ Do not need to have specific intent to cause particular harm suffered by the plaintiff – general intent sufficient
§ Def must act of his/her own volition
→External manifestation of the defendant’s will
→Not include things such as epileptic fits, reflexive actions or convulsive actions
§
iv. Contact
§ physical contact
→Includes contact with clothing or an object closely identified with the body
→Direct = Person to person (def to pl)
→Indirect = Def causes an object to touch pl
v. “harmful contact”
§ Section 15 of the Restatement (2nd):
“any physical impairment of the condition of another’s body, or physical pain or illness.”
vi. “offensive contact”
• Restatement of Torts 2D § 19
