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Stanford University School of Law
Engstrom, Nora Freeman

Nora Engstrom, Torts, Fall 2012

Elements of plaintiff prima facie case
Duty (for judge)
Breach  (usually negligence but depends on duty; for jury)
1.      Actual (practical/factual question)
2.      Proximate (Legal/policy question)
Cognizable injury
1.      Contributory/comparative negligence
2.      Assumption of risk
1.      Implied
1.      Primary
2.      Secondary
2.      Express
1.      Compensatory
1.      Economic
2.      Noneconomic
2.      Punitive

Is this a good rule?
Compensation goal (make victim whole, pulverize loss)
Deterrence (Level of damages must deter tortfeasors from omitting precautions)
Equity (horizontal, vertical)
eFficiency (administrative costs, time)


Restatement Section 4: “The word 'duty' … denotes the fact that the actor is required to conduct himself in a particular manner.”

General duty: All engaged in risk-creating conduct have a duty to avoid causing foreseeable personal injuries to foreseeable plaintiffs. (For unforeseeable plaintiffs, see proximate cause.)
Duty determinations are subjective and heavily influenced by policy considerations. However, they arise only in a small subset of cases, since there is often no question of duty owed.
In general, duty is determined by the judge, while breach is determined by the jury. (However: after the judge decides which duty would be applicable to a particular case, the jury will answer the question of whether that duty existed in this particular case.)
Criteria to determine whether a departure from the general duty of care rule is appropriate include: “the foreseeability of harm to the P, the degree of certainty that the P suffered injury, the closeness of the connection between the Ds conduct and the injury suffered, the moral blame attached to the D’s conduct, the policy of preventing future harm, the extent of the burden to the D and consequences to the community of imposing a duty to exercise caring with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”

** There is generally no affirmative duty to act or rescue, even when D has superior knowledge.
(Harper v. Herman: no duty to warn, despite superior knowledge, unless there’s a special relationship.)

I. Special relationship may give rise to duty to protect à usually, one has power over another; vulnerability present; and/or economic advantage); 2d Restatement § 314A
* Common carriers      * Innkeepers    *Owners of land         *Warden and prisoner
*Person who has custody of another, depriving of normal opportunities for self-protection                       
*School pupil              * Surrogate parent/custodian (Bjerke: promise to look after child)
* utility/customer (Adams v. Northern IL Gas: utility has a duty to warn its customers of known dangers, even though the danger is not due to the utility or under its control.)
* companions on a social venture (Farewell v. Keaton; not recognized everywhere)
Medical providers:
Tenuto: Court recognized a “special relationship-based expanded duty of care” between doctor and immediate family members and found doctor breached duty by not informing of risk of contracting polio from recently immunized infants’ feces.
Pate v. Threkel: doctor has duty to children of patient who contracted genetically transferable carcinoma. Obligation was for the benefit of certain identified third parties and the D knew of the existence of those third parties, so he had a duty to those third parties.
Hawkins v. Pizarro: Court rejected suit because Pate required that third party's existence or identity be known at the time of the negligence.

II. Between strangers, D may have affirmative duty to act/rescue if D puts P at risk

1. Commenced Rescue (misfeasance) – Farewell v. Keaton (left in car without anyone’s knowledge)
If a D attempts to aid P, D will be liable for (i) failure to use reasonable care for the protection of the P while P is under D's charge OR (ii) if D leaves P worse off. Restatement Section 324. (Third Restatement: Have to exercise reasonable care when discontinuing aid.)

2. Causation: Creating the peril – § 322 of 2d Restatement: If actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.
* Even innocent causation:
* Maldonado: P claimed that he fell off D’s freight train when it jerked as he was trying to board and suffered serious injuries. Court imposed duty based on §322.
* Simonsen: Motorist who knocked a utility pole into the street and drove on had an affirmative duty to use due care to remove the hazard or to warn others of it, even though not liable for creating hazard.
* Tresemer: P was seriously injured from use of IU device. D had duty to warn about device's newly-known dangers.
* Non-innocent causation:
* Weirum v. Rko: Radio station encouraged/facilitated dangerous conduct when minor killed another driver in pursuit of DJ.
* Rice v. Paladin: publisher of “hit man” manual tried based on intent that book be used to assist criminals in contract murders.
* West v. East Tennessee Pioneer Oil Co.: defendant gas station owed a duty based on its conduct in assisting the intoxicated driver in his purchase of gasoline and thereby creating a risk of harm.
* Palma v. U.S. Industrial Fasteners: D driver left a truck unlocked with the key in the ignition in a highly dangerous neighborhood. Foreseeable risk of harm and a consequent duty (bad neighborhood, intent that the truck remain vulnerable for a long period of time, the size of vehicle and its consequent ability to inflict more serious damage if not properly controlled, the fact that safe operation of a half-loaded two-ton truck was not a matter of common experience.)

3. Voluntary undertaking/promise to perform (misfeasance)
1. See e.g., Restatement Section 311: (1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such persons as the actor should reasonably expect to be put in peril by the action taken
* Did defendant actively supply false or hopelessly incomplete information?
* Did defendant promise to perform and fail to perform?
* Mixon: manager failed to relay pregnant wife’s message to waiter husband, despite promise.
* Randi W: schools engaged in voluntary act and made affirmative misrepresentation.
* Garcia: once he spoke, parole officer had a duty to exercise reasonable care in giving the victim information regarding the parolee who ultimately killed her.
* Jackson: adoption agency had a duty based on providing background info to Ps.
* Designated driver has duty to third persons only if performance begins (White v. Sabatino)

*Voluntarily adopted safety rules don't serve as the basis of an affirmative duty to third parties.*

4. Statute, with express/implied private right of action, may create affirmative obligation to act:
If YES action → perhaps negligence per se doctrine → if so, statute stands in for the content of what constitutes reasonable care. Recall Martin v. Herzog.
If NO action → generally no common law duty. Does a statute (expressly or impliedly) create a civil liability for failure to act?
à Did the legislature intend to create a civil liability?
* Three-part Sheehy test to determine whether a private right of action may be fairly implied:
(1)   whether the plaintiff is one of the class for whose particular benefit the statute was enacted;
(2)   whether recognition of a private right of action would promote the legislative purpose; and
1.      what the legislature was seeking to accomplish when it enacted the statute
2.      whether a private right of action would promote that objective
(3)   whether creation of such a right would be consistent with the legislative scheme

5. Special relationship with dangerous person may give rise to duty to control.
Court must feel duty is appropriate, and D must:
(1)   Be in position to exercise control over T; and
1.      Warden/prisoner (HIV-positive prisoner spitting through gate)
2.      Employer/employee when employee is outside scope of employment but on the employee's land or using employer's stuff in what the employer knows/should know is dangerous way.
3.      Parent/minor child if the parent knows or should know of the child's dangerous proclivities (Ellis v. D'Angelo – parents can be negligent for failing to warn of monster child)
4.      Certain landowners/certain visitors or occupiers. See Connolly v. Nicollet Hotel.
(2)   Have special knowledge (actual or constructive) of T's danger.
1.      Must be identified potential victim. (Thompson v. Alameda County)
Tarasoff: No duty for therapist to disclose unless such disclosure is necessary to avert danger to V.
* does not apply where risk is “self-inflicted harm or mere property damage.” (Bellah v. Greenson)
* also a duty to warn parents of potential property damage (Peck v. Counseling Service)
Reisner: Doctor owed a duty to P who D’s patient infected with HIV.
Lester Mavrogenis v. Hall: doc had no dut

h different categories for trespassers and invitees/licensees).
à Focus of negligence inquiry should be on the foreseeability of the injury, rather than the status of the person who enters the property.

a. Heins factors to be (not exclusively) considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors: (trespassers a separate category)
(1)   the foreseeability or possibility of harm
(2)   the purpose for which the entrant entered the premises
(3)   the time, manner, and circumstances under which the entrant entered the premises
(4)   the use to which the premises are put or are expected to be put
(5)   the reasonableness of the inspection, repair, or warning
(6)   the opportunity and ease of repair or correction or giving of the warning
(7)   the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.
b. Rowland v. Christian: eliminated common-law entrant categories in CA, leading move toward unitary standard. But only about ten states have also removed trespasser standard.
c. Third Restatement: adopts a duty of reasonable care to all entrants, save for flagrant trespassers (burglars, etc.).
d. Effects:
1) Social guest (even trespasser?) can at least conceivably recover for unknown dangers → affirmative duty to inspect even house?
2) If true unitary standard, trespassers owed significantly greater care.           
3) More cases get to a jury. Jury has wide latitude. Much less certainty for landowners.

3. Landlord/tenant duties
a. Traditional: A landlord liable in tort only “if the injury is attributable to (1) a hidden danger in the premises of only the landlord is aware, (2) premises leased for public use, (3) premises retained under the landlord's control, such as common stairways, or (4) premises negligently repaired by the landlord.
b. New rule: A landlord must act as a reasonable person under all of the circumstances, including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk…The questions of control, hidden defects and common or public use…will now be relevant only inasmuch as they bear on the basic tort issues such as the foreseeability and unreasonableness of the particular risk of harm.

4. Landlord’s duty to protect against criminal activity
a. Four Tests for Duty:
1)      Specific Harm: Business aware of specific, imminent harm. (too restrictive)
2)      Prior Similar Incidents: Previously, relatively recent, similar crimes on or near the premises. (arbitrary, one “free” incident before duty created)
3)      Totality of the circumstances: Look to everything: nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on foreseeability; number, nature, and location of prior similar incidents. More willing to see property crimes or minor offenses as precursors to more violent crimes. Don't need a prior similar incident to establish foreseeability. (Most common, but potentially broad, hindsight bias)
4)      Balancing: Balancing the probability and gravity of harm against burden on business. (narrow, arbitrary, usurps jury's role to determine breach by calling it duty because duty determination replicates negligence determination)
b. Landlord/tenant: Landlord's duty is to take measures of protection which are within his power to take and can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. (Kline v. 1500 Massachusetts Ave.)
c. Posecai: Although business owners are not the insurers of their patrons' safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are reasonably foreseeable.