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Torts
Temple University School of Law
Glennon, Theresa

Torts, Glennon, Fall 2011
 
I.  THE DUTY REQUIREMENT
 
A.  Duty 
1. General duty to exercise reasonable care under the circumstances
2. No affirmative duty to rescue (Is that rule justified?)
3. No special relationship (i.e. strangers)= general duty to act w reasonable care not to cause
 injury to others, limited to reasonably foreseeable risks
a. Cheng v. Septa
i. Commonwealth Court of PA, 2009
ii. P struck by bus while crossing street
iii. Rule: When the parties are strangers, a relationship may be
            inferred from the general duty imposed on all persons not to
 place others at risk of harm through their actions
                                                            iv. If a pedestrian crosses a street at a location other than a regular marked
crossing, he is bound to exercise a higher degree of care for his
own safety than would be the case were he crossing at an
intersection
 
b.   Harper v. Herman (9/28)
i.  Supreme Court of MN, 1993
ii. P passenger on D’s boat, P injured diving off boat into shallow water
iii. Rule: Superior knowledge of a dangerous condition does not
provide duty to warn if no special relationship or pre-existing duty
v. only spec. rel. if D had custody over P & P couldn’t protect himself
vi. superior knowledge of a dangerous condition w/o duty to protect
            insufficient to establish liability in neg.
 
                                                c. Hammontree v. Jenner
                                                            i. Court of Appeal of California, 1971
                                                            ii. D had seizure, drove into P’s bike shop
                                                            iii. The liability of a driver, suddenly stricken by an illness rendering
him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence
iv. D followed all rules & took meds
                                                            v. D incapacitated, incident unexpected, incident beyond his control/not
 preventable (if dr. advised against driving would have been
 preventable, could argue neg.)
 
4. EXCEPTIONS to no duty to rescue rule—created by judges for policy reasons
a. Special relationships (to victim or wrongdoer)
-neighbors not necessarily special rel., not like teacher/student
-not responsible for spouse’s behavior unless participation in creation of
           foreseeable risk
 
i. Farwell v. Keaton (9/28)
1. Supreme Court of MI, 1976.
2. P beaten, D nursed, P slept in car, D unable to rouse P left him
 in car, P died 3 days later
3. Rule: Companions on a common social venture owe duty to
each other to render aid if doing so will not injure  himself.
4. Policy Issues: society is benefited if members are required to
 assist each other
5. friends, common social venture
6. moral duty to care for friend
7. different from Harper b/c friends v. no relationship
 
ii. Randi W. v. Muroc Joint Unified School District (9/28, 10/3)
1. Supreme Court of CA, 1997
2. D wrote positive recommendation for teacher who hired by
other school, sexually abused P
3. Rule: A person owes a duty to a third party not to
misrepresent facts if making this misrepresentations would present a substantial, foreseeable risk of physical injury to the third party
4. liability may be imposed if letter is a misrep. Presenting
 foreseeable & substantial risk of physical harm to 3rd party
4. Foreseeability & causality: if they write rec., school will rely on
                it & hire him
5. Moral Blame: not enough facts, open question
6. Harm Prev.: protect ch’ren from abuse; R resp. for children daily
7. Burden to D, conseq. to comm.: might lead to more openness; if
              letter not malicious not liable and can err on side of safety
              instead of omission
8. Availability of insurance/alt. courses of conduct
insurance=protected from neg. acts of employees; no req. to write letter or could have written full disclosure letter
9. No special relationship, no duty
10. Misrepresentation: negligent, false, physical harm, reasonable
reliance, listener/3d party reasonably expected to be put in peril
 
 
 
 
iii. Tarasoff v. Regents University of California (10/3)
1. Supreme Court of CA, 1976
2. Psych treating patient, told him of intent to kill P, did not warn
P, patient killed P
3. Rule: A special rel. between two people creates duty to                                    protect the foreseeable victim from danger of one party
4.  Foreseeability & causality: mentioned it, made judgment
   patient was dangerous
6.  Harm prevention: confidentiality, hope that therapist can
    deter patient from doing harm (no confidentiality,
    patient might not confess); public policy diff. when
    clear victim b/c imposing burden in fewer instances,
    warning hard when no one to warn, more useful if
    you tell that person they can do something
                                                       

ough H2O to hydrants, fire destroyed P’s
            warehouse
3. Rule: A company has no duty to parties not privy to K for
 omission
4. Ppl relied on K, if no hydrant ppl would have acted differently
5. Nonfeasance (didn’t get water to hydrant)/omission
6. Burden to D/Conseq. to comm.:limit liability b/c too expensive,
             might pass on expense to city, city could privatize hydrants
7. Insurance: economically efficient to buy insurance b/c many
               factors could cause fire, can’t depend on city
 
c. Creation of  risk (not b/c of negligence)
i. Strauss v. Belle Realty Co.
ii. Moch
iii. Vince v. Wilson
 
d. Creation of harm (not b/c of negligence)
-usually not held liable for emot. distress, zone of danger & bystander
         makes you potentially liable
i.  Falzone v. Busch
ii. Portee v. Jaffee
 
B.   Policy Analysis of Duty
1. Determination when to find that one individual has a duty to another is a policy decision 
a. Tarasoff v. Regents of the University of California
b. Strauss v. Belle Realty Co.
            i. For policy reasons, no duty to persons not privy to K
c. Reynolds v. Hicks (10/5)
                                                            i. Supreme Court of WA, 1998
ii. Nephew consumed alcohol at Ds’ wedding, car accident w/ P
iii. Rule: Social host has no duty to third person to protect from
 intoxicated guest but a commercial vendor does have a duty
iv. dram shop law=commercial vendor liable to 3d party
                                                            v.  No to social host liability: hard to monitor, hard to know minor
                                                            vi. Yes to social host liability: hire ppl to ensure no minors, minors
                                                                         not responsible to make those decisions, provide bus transport
                                                                         who else best situated?, illegal to serve minors, insurance, B