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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
1. Nonfeasance vs. Misfeasance
a. Nonfeasance
i. No duty to act
b. Misfeasance
i. Causing someone injury
a. 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.
Non-performance of Promise
i. accountable for misfeasance not nonfeasance
ii. if undertaking of promise was voluntary
1. not responsible if

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.