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Rutgers University, Newark School of Law
Perry, Twila L.

Rutgers Law School – Newark

Torts – Professor Twila Perry

Fall 2012



A. NO DUTY TO RESCUE RULE: A stranger is not required to help another, even if aid could have been rendered with little risk or effort.

Exceptions to the Rule: 1) creating a peril 2) special relationships 3) voluntary assumption 4) contract and gratuitous promises 5) statute (good samaritan)

1) Creating a Peril: When the need for rescue arises because of the defendant’s negligence, a duty to rescue is created. Some hold that knowledge of a risk alone, without a special relationship, does not give rise to duty.

● Simonsen v. Thorin (note case): The pole had been broken and knocked into the street by a delivery truck owned and used in the owners’ grocery business.

● BUT SEE Harper v. Herman where knowledge of risk does not give rise to duty. Others would have argued that ∆ had a duty to exercise reasonable care to prevent foreseeable dangers to plaintiff. Man was injured when he dived from boat into shallow water. p.131

2) Special Relationships

They Arise with:

Common carriers, innkeepers, possessors of land held for public, custody of those deprived of normal opportunity for self-protection

Defendant and victim as co-venturers

Co-venturers/social companions

Farwell v. Keaton: Beer drinking buddies 1) Special relationship arising from common undertaking/social venture 2) Voluntary assumption of a duty: if you begin, even if you had no duty, a duty arises to leave in no worse of condition.

SOCIAL HOSTS (Generally NO duty):

Harper v. Herman: RULE: Affirmative duty to act only arises when a special relationship exists between the parties. It can’t be any kind of relationship, it needs to be heightened, a special one. Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection is insufficient to establish liability in negligence. p.131

3. Voluntary Assumption:

● Modern view: the rescuer is obligated to act reasonably once she has begun to act.

● Restatement 2nd §324- If you voluntarily aid someone you are subject to liability if (a) you fail to exercise reasonable care, and (2) you discontinue aid and leave the person in a worse position than when you took charge of him p.141

● No liability to Doctors who render aid: Rationale: it will encourage rather than discourage doctors to help injured victims.

● A promise or contract can create a duty

Mixon V. Dobs: Husband informed his manager that his wife was pregnant

4. Contract & Gratuitous Promises: A special relationship exists unless it is a utility to prevent crushing liability—the courts establish the doctrine (non-foreseeable tenant is not privity with utility; contract is b/in LL and utility).

● Strauss v. Belle Realty Co.: The tenant was injured going in the common area RULE: Elec. Co. owed duty to landlord and not the tenant. POLICY: 1) To find for the tenant would allow unlimited liability for accidents during blackout–the LINE must be drawn here. 2) Injured parties should have own insurance

● Moch v. Rensselaer Water Co.: P sued water co. b/c water pressure was not strong enough to prevent spread of fire to P’s bldg. Rule: A 3rd party beneficiary is not able to recover for damages caused by a promisor’s failure to perform his contract.

5. Statute: Sometimes a statute creates a duty to act.

Good Samaritan Statutes: You do not have to voluntarily aid someone unless there is a Good Samaritan

Child abuse reporting statutes: adopted by every state p166

5. Statute(Con)

Duty to report crimes

Sherrice Iverson case in Las Vegas:

● Uhr v. East Greenbush Central School District: School to examine students for scoliosis. The court having determined that the statute did not create a private right of action. A private right of action was not consistent with the statutory scheme. Legislative intended to allow private action, they would have included in the statute and in this case, they had already included penalties but private action was not one of them. p.161

○ Sheeley Test 1)P is one of the class to benefit from the statute 2) whether recognition of private right of action would promote the legislative purpose 3)whether creation of such a right would be consistent with the legislative scheme


1) Duty to Warn 2) Negligent Hiring/Supervision

3) Negligent Entrustment 4)Social Host Liability

1. Duty to Warn: generally not legally obligated to protect another from harm.

Duty to Control & Exceptions: special relationship between the defendant and the third party causing the harm combined with actual or constructive knowledge of the need to control,

● In some jurisdictions the duty to warn only “readily identifiable victims” while in others all foreseeable victims must be warned.

● Duty to third parties based on physician-patient relationship:

● Tarasoff v. Regents of the Univ. of California: Therapists Holding: therapists’ special relationship to patient was extended to victim. Rule: Once a therapist knows or should have known that his patient presents a real danger to a 3rd party, there is a duty to warn or otherwise take reasonable actions to prevent the danger. p.151

○ Differing opinions (foreseeable v. identifiable)

● Fraud and Negligent Misrepresentation to 3rd Parties:

● Randi W. v. Muroc Joint Unifed School District: School district placed false info in vice principal’s record re: prior sexual assault. Rule: No describing the qualifications and character of former employee, if making those misrepresentations would present SUBSTANTIAL, FORESEEABLE risk of physical injury to 3rd parties. p142

2. Negligent Entrustment: Negligent entrustment involves a misfeasance by the defendant. Supplies a chattel is liable if he knew or should have reason to know of impending dangers

● Vince v. Wilson: Passenger injured in automobile accident brought suit against driver’s relative who had provided funding for purchase of vehicle, as well as auto sales corporation from which vehicle was purchased and salesman. Rule: A person who enables or facilitates an incompetent driver to purchase a vehicle may be liable for negligent entrustment. p182

● Cosigners (no duty): in Peterson v. Halsted a father co-signed a note so his daughter could get financing for a car, she made all the payments. CT held no duty to a co-signer p.185 note2

● Keys in the Ignition:

● Restatement 2nd § 390 extends doctrine to sellers. a seller cannot assume a chattle will be used safely if she “knows or has reason to kow that the other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use it safely, or lacks training/experience” p.187 note 7

○ Kitchen v K-Mart Corp: P’s ex-boy bought a gun at D’s store after being visibly drunk and then immediately shot P. p187

● Unintentional negligent entrustment also equals liability (For example leaving keys in ignition and drunk person takes the car.)

3. Negligent Hiring or retention or supervision: Duty for background check into area of relevance. No duty for company to prevent employees from getting romantically involved.

4. Social Hosts/Suppliers of Liquor: Traditionally courts did not hold suppliers or social hosts liable to those injured by a drunk driver.

Minority: The NJ court there should be no distinction between standards applied to vendors & social hosts who furnish alcohol

Marjority: However, most courts feel that this approach minimizes the responsibility of the drunk driver, interferes with social custom. These cases were viewed as duty to control cases because P is asserting that D should’ve stopped the drunken person from driving.

● Reynolds v. Hicks: Plaintiff, who was injured brought a negligence action against social hosts Rule: does not allow a 3rd person injured by any intoxicated minor to sue the social hosts providing the liquor.

● Liability on Commercial Enterprises: Dram Shop Acts p.181-2 note 8

○ most states have imposed liability on commercial enterprises

● Pro Social Host Liability:

○ Social policy to stop drunk driving

● Con Social Host Liability:

○ It should only apply to commercial vendors b/c they retain a monetary benefit.

cts are the kind that congress inteded to shield from tort suits. Decisions that require choice are exempt from suit only if they are susceptible to policy judgement and involve an exercise of pol/soc/econ judgement

Ministerial Acts: conduct requiring adherence to a governing rule, with a cumpulsory result—may subject the municipal employer to liability for negligence.

Discretionary function: Most important, no liability may be based upon the government’s exercise of a discretionary or policy-making function, even if the discretion is abused

General v. Specific duty: municiapal employee needs more than a general duty to society, rather needs a specific duty to the P in orfer to create civil liability. P must be able to show that D owed a specific duty to her, not just a general duty to the soceity.

● Lauer v. City of NY: Medical examiner failed to notify law enforcement of correct autopsy report, investigation of child’s father continued for 17 months. CT held that medical examiner’s acts were ministerial so immunity was removed; but he did not owe a specific duty to the plaintiff

○ Failed Cuffy factors because the Medical Examiner never undertook to act on plaintiff’s behalf, made no assurances to the plaintiff directly, and assumed no affirmative duty the plaintiff relied on.

● Riss v. City of New York: ¶ repeated asked police for protection from rejected boyfriend b/c she feared for life and he threw lye in her face. The court held no duty owed b/c police protection is discretionary and police dept. decides how to allocate resources.

○ BUT SEE Cuffy v. City of New York: Police told ¶ family that they would take care of fights with neighbors in the morning. ¶ son was beaten by neighbors the following night. No recovery b/c son could not establish direct contact or reliance with police. HOWEVER, this court recognized four exceptions where a special relationship would exist with police to warrant recovery: p233

Cuffy Factors:

1) an assumption by the municipalities through premises or action, of an affirmative duty to act on behalf of the party who was injured 2) knowledge on part of the municipality’s agents that inaction could lead to harm 3) some form of direct contact b/in the municipality and injured 4) party’s justifiable reliance on the municipality’s undertaking. p233


Wives: Today all immunity from suits is gone partially due to the Married Women’s Acts.

Parents: Some states, parents cannot be liable for negligent supervision because courts will not tell parents how to raise their kids BUT in other states, a child can sue when the accident is from a situation in which the child was unsupervised

● Additional Notes on Parents: FETUS can sue mom for being neg. during gestation and children can sue parents for intentionally inflicted harm like child abuse or battery.

● Broadbent v. Broadbent: ¶’s father sued in ∆ mother to recover damages for injuries sustained by the minor when he nearly drowned in the family swimming pool due to ∆’s negligent supervision. . parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship,

Pro Parental Immunity/Duty to Child: 1)The state does not want to disturb domestic tranquility

Pro Reasonable Parent Standard Test/Duty to World: 1) children should be protected from negligent supervision