ELEMENT 1: DUTY
General Rule: A legal obligation owed by D to P that requires D to act or refrain from acting in a certain way
JURISDICTIONAL APPROACHES:
1. Majority Jurisdiction– legal duty owed by D if there is a forseeable risk of harm, and forseeable P’s
· E.g. A runs a stop sign and hits B who is crossing the road(in the zone of danger.) B flies from the impact and hits and injures C standing on the sidewalk. Majority rule says A owes no duty to C because they were not forseeable.
2. Minority Jurisdiction – Everyone owes a duty to the world at large to refrain from acts that may unreasonably threaten the safety of others. Causation of harm determines if duty is owed.
· If no intervening factors of harm à duty owed
· E.g. A runs a stop sign and hits B who is crossing the road(in the zone of danger.) B flies from the impact and hits and injures C standing on the sidewalk. Minority rule would find a duty owed by A to C. (to the world)
NONFEASANCE:
NONFEASANCE (passive inaction) – failure to benefit/protect P from risk of harm caused by others
· No Duty Rule – Passive Inaction (fail to act) à No Duty (Majority View)
o JS & MS v. RTH – court decides to impose duty on marriage relationship for first time. Wife’s interests (marital harmy, pressure on marriage, privacy) v. abused children’s interests and society interests àimpose duty
· Policy Argument – If we held D responsible for something they failed to do this would conflict with torts liability which is based on fault. Conflicts with individual liberty
EXCEPTIONS
“No duty rule” might not apply AND duty might be imposed if:
1. Special Relationships
· Entrustment – Hospitals and Patients, Employers and Employees, Common
ck in elevator. Store must help because of their unique position of control and for quid pro quo
MISFEASANCE:
MISFEASANCE (risk creating conduct) – active misconduct that causes a positive injury to P, & leaves P worse off than before
· Duty of Care Rule – Risk Creating Action ( 1) forseeable risk of harm & 2) forseeable P àDuty Owed
o A forseeable P à must be in the “zone of danger”
· Negligent omission (risk creating omission) – D fails to do something a reasonable person would do (acts like active misconduct) therefore acted in a risky way
o E.g. – Anna fails to apply the brakes when approaching a person
E.g. – Road crew digs trench but fails to light at night
