NEGLIGENCE OUTLINE
I. DUTY – Does this D owe a duty to this P? Assuming this D owes a duty to this P, what is D’s standard of care?
A. DID D’S ARGUABLY NEGLIGENT CONDUCT INVOLVE AN ACT OR AN OMISSION TO ACT?
1. If D’s negligent conduct involved an act (e.g., misfeasance), you do not need to discuss this potential issue & can go directly to sections I.B. & C. below
2. If D’s negligent conduct did not involve an act (e.g., omission to act or nonfeasance), you need to analyze whether D has an affirmative duty to act
a. GR: D has no duty to take affirmative action to aid or protect others (D’s argument)
b. D may have an affirmative duty to act if one or more of the following applies (P’s argument)
1) Special relationship between D & P
a) Characteristics of special relationships
(1) P who is particularly vulnerable & dependent on D and/or
(2) D who holds custodial or other power position over P and/or
(3) P who lacks ability to protect him- or herself & expects protection from D
(4) D who derives some existing or potential economic advantage from P
b) Examples of special relationships
(1) Parent/child
(2) Employer/employee
(3) Doctor/patient
(4) Jailers & other custodians/prisoners & wards
(5) Schools/pupils
(6) Co-adventurers (e.g., mountain climbers v. companions on a social venture)
(7) Common carrier/passenger
(8) Innkeeper or restaurant owner/guest
(9) Shopkeepers/shoppers
(10) Possessors of land who hold it open to public/guests
2) D is responsible for P’s peril leading to duty to rescue
a) Early – no duty in non-negligently caused peril
b) ML – duty even if non-negligently caused peril
3) D has undertaken to aid P (e.g., in emergency situation) – deemed to have assumed duty to act with reasonable care once you have started to act
a) Some states – D can stop acting & abandon P if doesn’t worsen P’s peril & D didn’t keep others from acting by D’s conduct
4) P relied on D’s gratuitous promise
a) Maj. – no duty to perform gratuitous promise
b) Some courts – D liable where D knew or should have known P was refraining from obtaining other necessary assistance in reliance on D’s promise
5) P relied on D’s contractual promise
a) GR: No duty for nonfeasance
(1) Exc: Some courts – duty if foreseeable reliance
b) Duty for misfeasance of K promise based on tort neg. standards rather than K law (e.g., foreseeability v. privity of K)
(1) GR – Duty to perform contractual obligations with due care
(2) Exc: Limitations on liability for contractual misfeasance even if foreseeable harm (e.g., “crushing liability”)
6) Duty had a duty to warn or control
(1) the conduct of a third party to protect
(2) the foreseeable victim
(a) a) GR: No duty to contr
a) Direct liability based on employers own neg. for failure to prevent tortious acts of employee
b) Employees neg. acts are committed in employer’s presence
c) Employer is negligent in hiring, retaining or supervising incompetent, unfit or dang. employees or independent contractors
2) Vicarious liability (respondeat superior – Employer vicariously liable if employee acting within scope of employment
c. Negligent entrustment
1) Duty to exercise reasonable care not to entrust dangerous instrumentality to another person when D knows, or should know, person he “entrusts” is likely to cause harm to third party & D facilitates or increases foreseeable risk of harm
a) Entrustment includes directly or indirectly providing instrumentality
b) Usually neg. entrustment involves chn. but can also involve incompetent or violent adult or inexperienced, incompetent or intoxicated driver
2) Exc. – some courts – No liability if D no longer has right to control instrumentality
Duty not to encourage dangerous activities by third parties with foreseeable risks of harm to other parties – e.g., DJ contest
