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Temple University School of Law
Anderson, Mark F.

I.                    Issue
a.       What are the situations and relationships that give a duty to exercise reasonable care?
b.      Under what duties is one liable for negligent acts?
II.                  Rule
a.       Affirmative Obligations to Act
                                                               i.      Generally there is no affirmative obligation for a third party to act
                                                             ii.      Except when there is a special or contractual relationship between parties.
                                                            iii.      Some states (Minnesota and New Hampshire) have “Good Samaritan Statues” requiring one to come to the duty of another who is in need of care if they are able to do so without risk to themselves.
                                                           iv.      Most states now have statues that remove negligence liability from those who perform an act to help another.
b.      Negligent Entrustment
                                                               i.      A defendant can be found liable for supplying a dangerous instrumentality to a party that he should have reasonably known was not fit or safe to operate it.
c.       Sovereign Immunity
                                                               i.      Traditionally there is no liability for governmental entities.
                                                             ii.      Statues and courts have removed governmental immunity, however kept it limited.
d.      Negligent Infliction of Emotional Harm
                                                               i.      Traditionally one could not recover for purely emotional harm, but instead could hook emotional damages onto physical damages.
                                                             ii.      There has been a movement to expand recovery for NIEH to different situations.
III.                Analysis
a.       Affirmative Obligations to Act
                                                               i.      Special Relationships:    
1.       Inviter/Invitee
2.       One who takes custody of another and so secludes them
3.       Innkeeper/guest
4.       Owners of land who open up to the public (even if not for monetary gain).
5.       Other things like friendship create special relationships.
                                                             ii.      “Bad Samaritan Rule”
1.       By not acting one has less liability than by acting. If you don’t have a special relationship then you only have a duty to act if you begin to act. You could just walk away, instead, and be not liable.
2.       Only a couple states require rescue of any kind, but all those that do have statues precluding you of liability if you do so.
                                                            iii.      Duty of a doctor to warn a third party of a danger
1.       Psychologists have a duty to act like a reasonable psychologist and warn third parties of impending danger that they are aware of through their patients.
2.       Similarly, doctors have a duty to warn the family of a patient of a contagious disease.
a.       Exception: Because of the private and stigmatized nature of the illness, doctors do not have a duty to warn about illnesses such as AIDS.
3.       Exception: This duty is established because of a special relationship between doctor and patient. In cases where third parties hire doctors to evaluate patients they do not have a duty to disclose to the patients.
a.       E.g., if an insurance company were to hire a doctor to evaluate a plan holder, the doctor would not have a duty to inform the plan holder that he had cancer since there is no duty.
                                                           iv.      Statues creating private duties
1.       Three part test:
a.       Was the plaintiff of the class for whose particular benefit the statue was enacted?
b.      Would the recognition of a private right of action further the legislative purpose of the statue?
c.       Would creation of such a right be consistent with the legislative scheme?
2.       Statues can be used in two ways:
a.       To show that a duty exists where it may not have existed before.
b.      To show that a breach of an existent duty has occurred.
b.      Landowner/Occupier Liability
                                                               i.      Common law approach
1.       The duty of the landowner depends on the status of the person who is entering onto the land. Traditionally there are three statuses.
a.       Invitee: One who comes onto another’s land through invitation (express or implied) for the material benefit of the land owner/ occupier. Invitees are owed a negligence duty- they must be warned of damages that the landowner should have reasonably foreseen.
b.      Licensee: One who is invited onto the land of another for a purpose other than material gain. Generally, this person is a social guest or something similar. Licensees are owed a sort of reckless standard- they must be warned of damages that the landowner is aware of.
c.       Trespassers: Traditionally under common law no duty is owed to trespassers.

                                                               i.      Charitable immunity
1.       Now almost entirely gone, charities were immune to negligence exposure once.
                                                             ii.      Sovereign immunity
1.       In Common Law there was a complete immunity for the government, under the theory that the king could never be wrong.
2.       This has largely been moved away from. Generally there is a duty to the public at large more so than individuals.
                                                            iii.      Intra-familial immunity
1.       At one point spouse couldn’t sue spouse and child couldn’t sue parent. This has been curtailed. Now spouses can sue each other and in limited circumstances children can sue parents.
2.       There is a danger for fraud here. These cases are often filed by one parent against another in order to collect damages from their insurance company. Thus there is no really opposing party.
3.       Intentional conduct is not precluded by intra-familial immunity
4.       Babysitters are not included under this standard.
f.        Negligent Infliction of Emotional Harm
                                                               i.      The Zone of Impact Rule (Falzone)
1.       The emotional harm must be caused by the plaintiff being put into reasonable fear of their life.
a.       E.g., under this rule one would not collect if they viewed their husband being hit by a car while they were safely across the street in their car.
b.      They must be in the “zone of impact” for this test to be passed. One cannot collect for something that does not put them in an immediate danger of physical harm. (Metro-North).
2.       The fear/emotional harm must manifest itself in physical/objective symptoms.
3.       The act that caused the emotional harm was negligent so that you could have collected had there been an impact.
                                                             ii.      Loss of a loved one outside of danger zone (Gammon)
1.       The emotional harm must be reasonably foreseeable.