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Rutgers University, Newark School of Law
Gold, Steve C.

Professor Gold


Fall 2014

A. Negligence – Conduct falling below the standard of care that a reasonable person would demonstrate under similar conditions. It will not be found in terms of the law if all reasonable minds would draw the same conclusion

· 4 Elements to make a prima facie case; Duty, Breach, Causation, Damages

· Duty: A principle of neg requiring an individual to act in such a manner as to avoid injury to a person whom he or she owes an obligation. Justice Peters; Heaven v Pender “whenever one person is by circumstances placed in such a position with regard to another…that if he did not use ordinary care and skill in his own conduct…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”

· Breach: A person fell below the standard of what a reasonable person would do.

· Causation: The aggregate effect of preceding events that bring about a tortuous result; the casual connection between the actions of the tortfeasor’s and the injury that follows

· Policy: The idea of negligence and breach of negligence is open ended and flexible to cater to the idea that cases are individualized and that the circumstances determine what is reasonable or not.

DUTY: Duty is a legal question for a judge to determine and is not based on the facts of any given case. Modern Trend: We have a duty to be careful when we act and not cause harm. Policy: Worrying about the effects are actions have on everybody else & doing what we want.

1. Affirmative Obligations to Act: Question of whether the law should impose a duty on others to assist someone who is in danger. An obligation to undertake an affirmative action for the benefit of another.

· Policy Against: Harshness- If someone can help w/minimal effort then why not be held liable. Having no duty to act, is selfish and demonstrates a lack of civility.

· Policy For: Individual responsibility- take care for your own actions. Protection of individual autonomy – freedom to make my own decisions. Practical Administration – Always someone in distress, and if there was an affirmative duty everyone would always be in breach, not feasible to help everyone all the time – blanket rule of no duty practically limits tort liability

· Exceptions to Affirmative Duty Rule: 1. Statutes – may impose penalty for not acting (Exception is Good Samaritan Rules- limits liability when rescuing a person but harms them in the act: applied to specially trained individuals in rescue techniques 2. Voluntary Undertaking. 3. Creator of Risk – Individuals who create the harm cannot argue there was no duty “danger invites rescue”

· Harper v Herman

o Harper dives out of Herman’s boat into shallow water and becomes a quadriplegic

o Do social hosts owe a duty to warn guests of hazards?

o Rule of Law: A duty to act only arises when a special relationship exists between the parties. NO duty to reach out & help people from risk you did not create unless a special relationship

o “Special Relationship”: Commonalities are money and power to protect welfare of persons who fall into this category

§ 1. Common Carriers

§ 2. Innkeepers

§ 3. Possessors of land who hold it open to the public

§ 4. Person who has custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection (Guardianship, etc.)

o Exam Pts: Had D never existed and all other things remained constant would P’s situation change- No because P still would have jumped.

· Farewell v Keaton

o 2 buddies out chasing girls, 1 gets beat up, other buddy takes him home and leaves him in car. While driving home unharmed buddy applies ice and drives around for 2 hrs. Harmed buddy eventually dies of head injury.

o Majority Rule of Law: When buddies are engaged in a common undertaking, there is a special relationship b/n them and implicit in that relationship is the understanding that one will render assistance to the other when he is in peril if he can do so /out endangering himself

o Dissent Rule of Law: Only “co-adventures” who knowingly embark on a dangerous adventure should have a special relationship for the basis of imposing a legal duty to act

o Voluntary Undertaking Rule:

§ 1. Once you undertake to help someone in need, then you must do it as a reasonable person would (breach)

§ 2. Once you undertake to help don’t make the situation worse

ú Exception: Good Samaritan Statutes

o Exam Pt: Do not want to elevate a moral obligation to a legal duty

§ Be mindful of reliance to undertake

· Randi W v MJUSD

o 4 sch

ve to warn (reasonable person, don’t interrogate ,but a moments reflection could reveal answer). 2. Difficulty in forecasting credible threats (concerns of wasting (emergency) resources & breaking patient confidentiality) 3. Applying objective std based on subjective experiences

o Policy: Privacy of Patients vs Public Peril. Foreseeability alone is not the Hallmark test for a legal duty, for if it were cts could not logically confine the extent of liability and lead to defensive medicine (high burden on society to not get best treatment)

2. Policy Bases For Invoking NO Duty:

· Strauss v Belle Realty Co

o Con Ed case where old guy falls down dark defective stairway in common area

o Rule of Law: A defendant may be liable for negligence only when it breaches a duty owed to plaintiff

o Policy Pt: Cts have to fix the orbit of duty, to limit the legal consequences of wrongs to a controllable degree and protect against crushing liability

§ Considerations: 1. Logic. 2. Science. 3. Public Policy

ú Consider both sides of the policy arguments

§ In deciding where to draw the line the cts made it a contractual line draw (society does not like actual lines more so theoretical lines)

§ The greater the extent of damage the more limiting the liability of those who can bring suit

o Exam Pt: Courts don’t wish to extend duty to non-customers because liability would be to enormous for fear that extending the liability would lead to a slippery slope

· Reynolds v Hicks

o Underage nephew drinks at wedding then drives and crashes into plaintiff. Social hosts who give alcohol to minors owe a duty of care to 3rd persons injured by intoxicated minor?

o Rule of Law: The statute making it unlawful for any person to supply liquor to underage persons does not allow 3rd person injured by intoxicated minor to sue social host providing the liquor