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Torts II
University of Dayton School of Law
Gerla, Harry S.

Torts II Outline

Negligence Elements Continued

Is knows or has reason to know
Based on the facts you have, you should have figured out.
What you could find out with a reasonable investigation

Actual knowledge
Reason to know
Should have known

I. No Duty Rules
i. AKA: No duty immunities
ii. Created to protect against a jury’s misunderstanding of the topic
1. Even the person who acts unreasonably is shielded by this. We don’t think juries should be able to find that a person acted unreasonably. Even if person says “I acted unreasonable”
iii. True no duty rules shield the person that is acting unreasonably
iv. Statute can eliminate a no duty rule
b. Failure to Act
i. Regardless if the risks outweigh the utilities, a person is not responsible for a failure to act to save another (toddler in fountain hypo)
1. Can play around with words to change a failure to act into an action
ii. Policy for this rule
1. Less clear situations of risk/utility
2. Situations where jury’s couldn’t understand
3. Two Reasons for this rule
a. Individual autonomy
i. I am not my brother’s keeper
b. Who among the persons who could have helped are liable?
iii. Exception to No Duty Rule of failure to act
1. When someone voluntarily gives up their autonomy
2. Relationship: Parents
3. Instrumentality: When the thing that produced injury is under control of the defendant (the instrument cannot be a person)
4. Certain relationships, between the plaintiff and the defendant, kill the No Duty Rule for Failure to Act
5. A promise by the defendant to act, or a contract to act
6. Voluntary assumption of the action (partial performance). You lose your no duty immunity if you put the victim in a worse off position because of your voluntary then retraction of help. (PAST EXAM QUESTION)
a. Minority: Once you start to aid, you lose your no duty immunity.
b. Restatement/Majority: once you start you lose your no duty immunity if you leave the victim worse off.
iv. Criminality
1. Failure to act is listed as a criminal statute in many states. But, it also says that ‘this in no way affects the civil liability’ of a person failing to act.
v. Defendant is not automatically liable if not deemed to have a no duty rule. Still have to try to meet the elements to see if it was reasonable to not act!
1. Defendant is automatically not liable if it is deemed that they have a no duty rule
vi. Does affect no duty rule of failure to act, but is not an exception: railroad hypo, where train blocked the road and firetruck couldn’t get through. House burned down and court found that railroad was not liable because the Failure to act was a no duty rule
vii. Relationships
1. Kill the no duty rule; Failure to Act:
a. Inkeeper – guest
b. Employer – employee
c. Parent – child
d. University – student
e. Business – customer
f. Prison – prisoner
g. *These relationships create an exception to the no duty rule because you voluntarily given up your autonomy by accepting the relationship
2. Spouse
a. Know or should have known: lose your no duty rule for failure to act
i. Split
1. Know
2. Have reason to know
ii. Relationship between defendant and the actual person who commits the harm can kill the no duty rule for failure to act if (know or should have known)
iii. If the spouse could not have figured it out, didn’t know or have special reason to know.
1. Reasonable does not matter
b. When a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm
c. Policy:
i. Wife does not have the legal right to control husband. That is why most courts did and still do, hold that the spouse has a no duty rule for failing to act, when failing to stop acts of their spouse, because they do not have control over spouse.
ii. To protect children from sexual abuse. Children who are abused often become abusers.
iii. All of these problems and costs are too burdensome. We have to say that the spousal relationship does not give control. But the policy to protect children is so strong that we must eliminate the no duty for failure to act in this type of case.
3. Parent/Child
a. Parent/child relationship is special because the parent is in “control” of the child. Parent has the legal right to control them.
viii. Warn
1. Under the common law, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct, the courts carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in

ner has a duty to warn the licensee of any hidden dangers, which are unknown to the guest, of which the owner has knowledge and to refrain from injuring the guest willfully or wantonly
3. At least same extent as discovered trespassers with two more breaks
a. No Break for activities (what is this here for)
b. Conditions: Does not matter if artificial or natural. If the condition could pose bodily harm, the owner must warn.
d. Invitee
i. Level of duty by owner
1. The owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee
2. Shoppers are invitee onto premises of store in areas of consumers only
3. If the possessor should anticipate that the dangerous condition will cause harm to the invitee despite the latter’s knowledge, the possessor’s with duty of reasonable care may require him to warn the invitee or to take other reasonable steps to protect him.
ii. Definition
1. One who is either expressly or impliedly invited onto the premises of another in connection with the business carried on by that other
2. Just because someone was invited… they are not automatically an invitee
3. Overlap
a. Public Invitee
i. Any member of the public who is on the land for purposes open to the public
b. Business visitor
i. Mutual Benefit (shopping for services)
ii. Can overlap with public invitee. The two are not mutually exclusive.
1. A business visitor can be a Public invitee, but a public invitee cannot be a Business Visitor.
iii. In business area you are invitee in that area. If you enter somewhere for employees only, etc. you are a trespasser. If you are given permission to be there, you are a licensee
iii. Scope of Invitation
1. Limit to where you may go
2. An invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter, or to remain
e. Trespasser