TORT OUTLINE 2nd SEMESTER
PROF. GERLA
I. NO DUTY RULES : FAILURE TO ACT
A. General no duty immunity for failure to act; protects from liability
B. If you control the instrumentality or put Π in peril you lose no duty protection. It does not mean you fell below the standard of care. You are not automatically liable if you lose your no duty protections.
1. Need rule to protect from liability in cases where circumstances are not clear.
Ex. Child drowning and onlooker cannot swim
C. Statutes will kill no duty immunity by imposing a duty.
D. Exceptions to no duty immunity are when someone voluntarily gives up their
Autonomy
Ex. By marriage, having children
E. Other exceptions to no duty immunity based on the relationships btw Π and ∆:
1. Student: Primary, Secondary School
2. Hotel Keeper: Guest while on premises
3. Parent: Minor Child
4. Guardian: Ward
5. Prison: Prisoner
F. Starting to act may be an exception:
View 1: Once you start to rescue you lose your no duty immunity. Π still has the burden of proving that ∆ acted unreasonably
View 2: If you start to the rescue and discontinue your rescue efforts you only lose you’re your no duty protection if you leave the victim in a worse off than they would have been
1. leave a victim worse off if you deter other rescuers, deter the victim from rescuing himself, put victim in deeper water
G. Promises can kill no duty immunity: Voluntary assumption of the duty
Ex. ∆ promises to act kills the no duty rule defense
H. Total nonfeasance (legal term for not doing something) does not kill no duty rules
1. Exceptions to total nonfeasance: Courts willing to find anything performance, borrowed from k reliance (PE) (If Π changes their position based on reasonable reliance to their detriment, a court will accept their reasonabl
erson should have discovered based on what they already knew
c. Should have known: What a reasonable person knows or should have known after making a reasonable inquiry. Almost purely objective
Privity: Not on exam
II. LANDOWNER AND OCCUPIER NO DUTY RULE
A. looking at whether what the owner does on the land impacts off the land
View 1: Full no duty immunity for natural conditions that impact off the land: if ∆ has no duty immunity can still argue reasonableness of behavior
Special rule: Have no duty immunity for natural conditions that impact off the land for trees, but not all trees. Exception is those trees abutting a public way in an urban area
– Cannot control natural conditions: can control artificial conditions
