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Torts II
Elon University School of Law
Grant, Helen


Professor Grant – Spring 2011


A. Duty – 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).

B. Exceptions where NO duty is owed

1. Non Action (Non-feasance/omission)

a. Misfeasance v. Nonfeasance: The law does not impose a duty to act

On exam, first identify if there is misfeasance or nonfeasance and if nonfeasance. If it is misfeasance, then skip the duty step; if it is nonfeasance, there is no duty except for the exceptions below:

Yania v. Bigan – Pl drowned in water while helping def start a pump at the coal mine; wife of deceased sues def claiming

(1) def urged, enticed pl to jump into the water [misfeasance] à Court said no, we live in a democratic society

(2) violated his obligation to a business invitee by not having premises safe, [misfeasance] à Court says you don’t have to warn of an obvious danger

(3) def failed to rescue pl [non-feasance] à Court said no

Lundy v. Adamar – Pl was gambling and had a heart attack

Misfeasance Examples:

· I’m driving my car and I see a child in the middle of the road and I panic and I omit to apply my brakes and I hit the child. Is this nonfeasance or misfeance? It is a misfeasance b/c it is an omission doing a positive act. Any omission that occurs during a misfeasance is a misfeasance

· Building a motor vehicle and fail to apply brake pad

b. Exceptions:

i. Defendant is in a Special Relationship to the plaintiff

A. Duty

1. Protect them against unreasonable risk of physical injury; AND

2. Give 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

B. Recognized Special Relationships – extent of duty is limited

1. Common Carrier : Passenger

2. Inkeeper : Guest

3. Business : Customer (Invitor : Invitee)

4. Family relationship

5. Employer : Employee

6. School : Student

7. Custodial Relationships

ii. Defendant 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:

· The failure of the actor to exercise reasonable care to secure the safety of the other while within 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 than when the actor took charge of him

A. Good Samaritan Law (NC) – 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. (Note, if you render aid in someone’s driveway, there is no immunity)

B. Health Care Providers as Good Samaritans (NC) – 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 received 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

The jury decides when the duty ends if you voluntarily assume a risk

Ex: “On “Intervent

1. Duty – Determines or pursuant to the standards of profession should determine, patient presents a serious danger of violence to another; the professional must use reasonable care to protect the intended victim against such danger (extends to include safety of 3rd parties)

2. Limitations

a. Determining danger per standard of the profession

b. Specific and immediate threat of serious bodily injury

c. Victim be specifically identified or reasonably identified

d. Warning to be least expansive based on the circumstances

Emerich v. Philadelphia Center for Human Development (p. 519) – boyfriend and girlfriend seeing the same mental counselor; boyfriend tells counselor that he is going to kill girlfriend and when girlfriend calls counselor he just tells her not to go to boyfriend’s house that day; girlfriend goes and is killed – Court held that the counselor did have a duty to warn which he met

Tarasoff – student killed

Sixteen year old boy has had history of violence. He has a particular propensity for hurting kids younger and weaker than he is. He has been treated by psychologists for years. Never deemed “cured”. He is kicked out of high school for getting in knife fight. He is living at home with his parents. Despite all this, the parents let him come and go as he pleases, even though there are many young kids in the neighborhood. One day he goes out and severely beats a 12 year old boy. Duty to control or warn owed by parents to 12 year old boy? “reasonably identifiable victims?” At what point do parents know of a child’s risk of danger b/c that is what psychiatrists are for?