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Torts II
Elon University School of Law
Grant, Helen

Helen Grant
Spring 2010

Class 1

Determining Duty of Care
1. Is there a Duty of Care?
2. If there is a Duty of Care the defendant will owe the standard of the reasonably prudent person in the circumstances (subject to exceptions).

Heaven v. Pender
“The proposition is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, 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.”…because you can foresee that when you do something that it can cause danger/harm then you owe a duty of care. You have to have conduct (positive acts, ex driving a car, building a building, treating patients) on your part to owe a duty of care.

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. In most cases no duty of care, in some there will.
o Non Action (Non-feasance/ommission/haven’t done anything)
o Emotional Harm (where this is all you suffer. You can recover if physical occurs as well)
o Pure Economic Harm (loss of money standing alone)
o Certain other special categories – Wrongful birth/wrongful life (Dr does tub tie procedure negligently and you get pregnant)
Misfeasance is a positive act or an omission during a positive act (failing to push the brakes).

Hypo – Pierce, a famous emergency room physician, is stuck in a traffic jam at the scene of a terrible car wreck in which two little children are badly hurt. Dr. Pierce has a bag full of first aid materials in his trunk, and he’s not moving because of the traffic jam. It turns out that other people at the scene recognize Dr. Pierce. They implore him to help. The fact pattern tells us that Dr. Pierce contemplates helping the children, but decides…”nah, I’d rather roll up the windows and listen to the radio.” One of the children dies at the scene. Does the common law impose a Duty of Care? Non-feasance, he does nothing, does he owe a duty of care where he hasn’t created the injury to the kids? No, there was no positive act on his behalf. There is no special relationship (he’s not their physician) or assumption of a duty to act. Hippocratic oath is a moral duty, not a legally binding duty. Every time you come to a doctor they chose to treat you or not. If they are treating you for a continuing illness it is different. Dr. Pierce didn’t assume a duty to act either. He contemplated it, but didn’t actually do anything/act, he didn’t take charge.

Rule of Non-Action – No Duty Rule
· Misfeasance v. Nonfeasance
· General Rule: the law does not impose a duty to act
· Exceptions:
o Defendant stands in a special relationship to the plaintiff (ex. You are a lifeguard on that beach were someone is drowning, family relationship, innkeepers, landowners);
o Defendant assumes a duty to act

Yania v. Bigan – yania walked over to coal mining area at Bigans land, Bigan asked Yania to help him. Bigan enticed him to jump in, he did and drowned. Wife brings three allogations of negligence, 1. Deprived him of freedom of choice. 2. Legal obligation to prevent drowning. 3. Landowners duty owned to people on his property. She was trying to argue that his conduct was a positive act. By encouraging him, you were doing a positive act, inducing him to jump. They said he was an adult and was responsible for his decision to jump in. Landowner situation doesn’t apply because it was a known and obvious danger. Left with the fact that you see a man drowning. Non-action. Moral, but no legal obligation.

Duty of Care is the judges decision.

Lundy v. Adamar – Nurse comes to heart attack victim’s aid. He sued because she didn’t use the incubating kit. Question of whether there was a duty of care to begin with. Case of non-action/nonfeasance. First argument was the innkeeper rule, that they take reasonable action to protect them from risk of harm. They argued there was a special relationship. Second argument is they assumed the duty by having the intubation equipment. They argue having the equipment shows that they voluntary assume the duty to act. The court says having the kit wasn’t sufficient to trigger the duty to act. Failure to get the kit or not having someone available to use the kit might be unreasonable. The Good Samaritan act was triggered. If you do the act in good faith, there is no civil liability. A pre-existing duty would defer the act. The statute cannot overcome a pre-existing duty. They had a duty of reasonable first aid, so you can’t claim the act to insulate you from a failure to meet that pre-existing duty. The statute was created to encourage people to help. The answer to this argument that the statute wasn’t applicable was that she already met that duty. They never argued that didn’t have a duty, they did what they were required to do. Anything above that duty that she might have done would protect her under the Good Samaritan statute. P. 510

If you stop someone from coming to aid, you voluntary assume a duty to act. Is it enough to start swimming towards a drowning person?

Special Relationship – Rest. Torts (2nd), S 314A
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, and
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.

Class 2

Special Relationships
· Recognized Special Relationships (includes)
a. Common Carrier-passenger
b. Innkeeper-guest
c. Business-Customer (invitor-invitee)
d. Family relationship
e. Employer-Employee
f. School-Student
g. Custodial Relationships
· Extent of the duty owed is limited

Voluntary Assumes 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
a. The failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
b. The actor’s 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. Restatements S 324.

Good Samaritan: N.C. Gen. Stat. S 20-166(d) (2001)
· Any person who renders first aid or emergency assistance at the scene of a motor vehicle accident on any street or highway to any person injured as a result of such accident, shall not be liable in civil damages for any acts or omissions relating to such services rendered, unless such acts or omissions amount to wanton conduct or intentional wrongdoing.

Health Care Providers as Good Samaritans: N.C. Gen. Stat. S 90-21.14
· Volunteer medical or health care provider at local health department or nonprofit community health center, a Volunteer rescue squad member and Volunteer Health care provider aiding athletic team members will be protected from liability for injury or death to the person they assist in rendering first aid or emergency health treatment providing:
a. They require no compensation for the service; and
b. It is reasonably apparent the situation requires prompt decisions and actions in medical or other health care, and that any delay in the rendering of the treatment would seriously worsen the physical condition or endanger the life of the person.
· Protection will not apply if the act/s constitute gross negligence, wanton conduct or intentional wrongdoing.

Is this a case of no duty to act?
“On intervention,” a reality TV sow, Pam an alcoholic, drank vodka and then drove off, spurring a producer’s offer to drive. They filmed her efforts to stay within the lanes. Was there a duty for them to act if she injured someone (caused damage)?

Class 3

If property or physical damage, you owe a duty of care. Special cases with non-action.

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 t

g you wouldn’t typically encounter, the normal type of emergency. They haven’t been trained in that type of way, doesn’t have the knowledge of the situation.
· Exceptions
o Not part of an emergency
o Injury results from dangers different to those that are typically faced by the police or firefighter’s work.
o A landowner who conceals or lies about a danger (ex. failure to disclose damaged steps).

Hypo – A police officer slipped on powdered sugar that had spilled on the floor of a donut shop. The officer was barred from recovery against the shop because he was carrying an injured person out of the shop when he was hurt, even though he would have been entitled to a cause of action if he had been in the shop as customer. If the New Jersey Professional Rescuer’s Cause of Action Statute (p.158) had existed at this time would it have affected the result of this case? He could recover under this statute. He was discharged from duty when it happened.

No Duty: to Control or to Protect/Warn (someone of the danger)– still a part of nonfeasance. You haven’t done anything positively. You do not have a duty to control the actions of others or warn of the danger unless you do something positively to create that danger.
· General Rule: No duty to control another’s actions
· Special Relationship Exception (that impose a duty to protect/warn):
o Parent/Guardian-Child
o Employer-Employee
o Custodian-Person in Custody
o Landowner-Invitee
o Chattel Owner-Chattel User

You only have to do what is reasonable. You don’t have an absolute custody to control someone’s action entirely, depends on relationship and what is reasonable.

Emerich v. Philadelphia Center for Human Development – argument for extending the relationship. Doctor told girl not to go to apartment because guy told him he was going to kill her. She went and died. Failure to control the actions of Joseph. Trial judge granted summary judgment to D because Penn had not adopted a duty to warn 3rd parties. They were both patients to the Dr. Why was she not a patient and a 3rd party? It was not concerning her care as a patient, but that of another patient. Supreme Court found a duty of care was owed. They referenced Tarasoff, where a guy told a Dr he was going to kill this 3rd party. The police spoke to him and decided he wasn’t a danger. It’s not an unlimited duty to warn the world. There needs to be a specific and immediate threat to a specific person. They should make a reasonable psychiatrist assessment, in accordance to the standards of the profession.

Special Relationship – Extended & Duty to Control/Warn
· Mental Health Worker-Patient = special relationship
o Extends to include safety of third parties
· Duty:
o Determines or pursuant to the standards of profession should determine, patient presents a serious danger of violence to another;
o Obligation to use reasonable care to protect the intended victim against such danger.
· Limitations:
o Determining danger per standard of the profession
o Specific and immediate threat of serious bodily injury
o Victim be specifically identified or reasonably identifiable (if you don’t know who it is you can’t warn them, issue of confidentiality of threat giver, money spent. Don’t have to warn the whole world)
o Warning to be least expansive based on the circumstances (depending on what is reasonable in the circumstances, warn the person, if you cant get a hold of them warn the police).