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University of Denver School of Law
Russell, Thomas D.



FALL 2013

I. Duty

A. Rule: When active, be reasonable

1. Its not be careful and don’t eliminate all risk, just be reasonable

B. Privity

1. Requires that the plaintiff have a contractual relationship of some kind with the defendant tortfeasor

2. Old Privity rule – if the employer (owner) accepted the work then you couldn’t sue the contractor

a) Liability only goes as far as the employer

3. New Rule – foreseeability rule

a) Active in their contracting work, get injured b/c of the contractor’s action, you can sue the contractor

b) Creates duty from the contract to those that might be injured when their active doing the contracting work

c) Ex: Bush v. Seco Electric

(1) Woman works in recycling business, loses arm when in the pit while she tries to fix the machine

(a) No Emergency Stop button

(2) New rules allows woman to sue the person who installs the machine

(a) Should have had Emergency button

(b) Contractor should have foreseen someone getting hurt and a button to to stop the machine to prevent injury

4. Physicians

a) Not liable to 3rd parties from injuries stemming from their patients

(1) Insulates doctors (tells epileptic patient its safe to drive, not liable to people injured from patients car accident)

C. Non-Feasance – didn’t do anything at all or omission

1. Most courts will impose liability for nonfeasance in cases that involve

a) Special Relationship

b) Undertaking to Act

c) Defendant who caused the plaintiff to rely on a gratuitous promise

2. Its when a person does not create the risk that ultimately injured the plaintiff

a) Omission – liable if you fall under the three categories

3. EXAM – Find an exception to move into misfeasance –> created the danger, contractual, rescue, special relationship

D. Misfeasance – did something and did it wrong aka did a bad act

1. Affirmative acts of misconduct, doing something that a reasonable person would not do

2. Shown by a negligent omissions

a) Failing to do something that a reasonable person would do

3. When a person creates the risk that ultimately injured the plaintiff

a) Omission – liable only if you created the risk

b) Ex: Satterfield v. Breeding Insulation

(1) Company was active and need to deal with the clothes from the employees working with asbestos

(a) Company did nothing (omission)

(2) Held liable to family members (they were active and did nothing) b/c harm was reasonably anticipated as a result of their omission

4. EXAM – Find that someone was active and how they acted unreasonably

E. Duty to Rescue (under the umbrella of Non/Misfeasance)

1. General rule is that a person does not have a duty to aid another

2. Exceptions:

a) If the D created the peril

(1) When the need for rescue arises b/c of the D’s negligence

b) Had a special relationship with the P

(1) Lifeguards, common carriers (RTD), innkeeper/guest, ship captain, employer/employee, school/student, business/customer, landlord, custodian of child

c) Undertook or volunteered to act and others relied on your actions

(1) No obligation to intervene, once they do, a duty arises

(a) Obligated to act reasonably once you begin to act

i) Must not leave the victim worse off

(b) Duty will be found when the D’s unfinished rescue efforts have dissuaded others from helping, or, where the D has prevented others from assisting

(c) Ex: Lacey – Coast Guard Rescue

(2) If you touch the person, you create a duty – leaning on the oars theory

d) Contractual obligation to act

(1) Duty arises from the contract

(a) Babysitter is generally required to rescue

F. Duty to Control

1. Person typically is not legally obligated to control the conduct of another or to take steps to protect another from harm

2. Exception:

a) Special Relationship

(1) Some relationship between D and 3rd party combined w/ knowledge of the need to control

(a) Criminals, mental patients, parent/child, employer/employee

(b) Doe Case – held that church did not have a duty to warn the children

i) Children weren’t under the church’s custody

ii) Pastor is not an employee of Mormon organization

(2) Ability to control the 3rd party to protect harm to the P

b) Therapists – liable when specific threat is made against a specific person

c) Supplier of liquor

(1) When you give someone alcohol you are liable if you have been active

(a) Letting them drive drunk, giving them their keys

(b) Give alcohol to a clearly visible drunk person – liable

(c) Companions on social adventures have a duty to one another – if they ditch him when they know he got beat up in the alley and leave him there, found liable

d) Negligent Entrustment

(1) Ex: giving a gun to a drunk person or a 9 year old

(2) When you give someone something, you are acting and therefore must be reasonable

e) Crime Issues

(1) Robbing a Taco Bell

(a) If one time thing – no duty to the patrons for their injuries

(b) If multiple times – liable for injures b/c it was foreseeable that one would get robbed again

3. No duty to control

a) When in line at Starbucks and someone says they are going to kill themselves or another – no duty b/c there is not ability to control that person’s actions

G. Duty to Protect

1. Generally no obligation to protect another from harm

2. Exceptions:

a) When D and P stand in a relationship in which the P has ceded the ability to self-protection, the D has a duty to make reasonable efforts to protect the P

(1) Jailer/prisoner, innkeeper/guest, parent/child, school/student, hospital/patient, common carrier/passenger, employer/employee

H. No Duty Rules (aka Judge made rules for whether a duty exists)

1. The decision of whether a duty exists or not is an issue of law and up to the judge to decide

a) Problem: to decide on duty is at times based on the facts of the case which should be decided by juries

2. If P win the duty ruling, does not mean the D is liable

3. Restatement – judges sometimes believe that new no duty rules are needed

a) Normally an actor has a duty to exercise reasonable care when conduct creates risk of physical harm

b) Exception – when a countervailing or principle or policy warrants denying or limiting liability in certain cases, court may decide no duty exists or that duty of reasonable care requires modification

(1) If certain public policy situations arise, a judge may go against the norm and say that no duty exists or needs to be modified

4. Trampoline Case

a) Duty was found – no public policy considerations that would warrant no duty

5. Delta/Old Lady/Baggage Claim Case

a) Duty was found in both cases – broad duty to protect passengers – should have taken reasonable steps (Learned Hand – could have done something to prevent)

6. KFC Case

a) No duty was found – armed robbery was not foreseeable, if occurred many times than there is a duty

7. Train Robber/Hallow Point Bullet

a) No duty was found – manufacturer couldn’t control actions of train robber

8. Leave your keys in the car running, someone steals it and kills a 3rd party

a) Duty – probably, there is a good chance that someone takes the car and could cause harm w/ it

b) Foreseeable – giving the car away, where it is so easy to take

(1) Some states say its not predictable, no duty

I. Law and Economics

1. Making an activity tortious

2. Externalizing the cost: I injure you and make you pay for it

a) Company generates pollution forcing you to paint your house more often

3. Internalizing cost: person who creates the harm pays for it

J. Fright and Shock (aka Mental and Emotional Harm)


es – Someone who enters the land with the express or implied consent of the land possessor such as social guests or those visiting for their own personal business such as a door to door salesman prior to the occupier agreeing to transact business

(1) Social guest (not a birthday invitation, but a birthday license)

(2) When people come over for a social purpose

c) Invitees – comes on the land with the express or implied consent of the occupier (customers, business guests, museum patrons, building inspectors, mail carriers, meter readers)

(1) Business invitees – on the premises for the potential financial benefit of the land occupier

(2) Public invitees – on the land held open to the public at large

(3) Come over for business, comes into store to buy something – hospital visitors (ability to transact business) public parks

(a) P wants to push their person to invitees

(b) D wants to push down to licensee or artificial

(4) Moving from one category to another

(a) One can move from a licensee to invitee when they start drinking wine at a party your licensee, but once business is discussed you become an invitee

(b) Once you tell the person to get off your land they instantly become trespasser

3. Determine the duty owed by the land occupier

a) Conditions v. Activity

(1) Conditions – natural/artificial (natural – rocks, cliffs, trees) (artificial – pools, giant paid for rocks, installed items)

(2) Activities – doing something on your property (shooting your gun, riding an ATV etc)

b) Trespassers – lowest standard of duty is owed

(1) Conditions

(a) Can’t willfully harm them

i) Can’t shoot them, tiger pits, traps, spring gun

ii) Don’t have to reasonable w/ trespassers, just can’t willfully injure them

(b) Frequent trespassers

i) If occupier knows trespasser is there, owe a higher duty

(1) May have to warn if there is an artificial condition that could cause SBH or death

(a) Some natural conditions are not considered (cliffs, falling rocks, snakes)

(c) Child trespassers — look above

(2) Activities – don’t have to be reasonable, just can’t willfully injure

c) Licensees – only obligation is to warn the licensee of concealed artificial or natural dangers on the property known to the land occupier

(1) Duty to warn them of concealed artificial hazard that they know about

(a) Only about known hidden dangers

i) If a giant hole that is easily visible

(2) Conditions

(a) Concern is w/ actual knowledge, if you know you have to warn

i) Wyckoff/Tubing case addresses this issue

(3) Activities

(a) Reasonably prudent person

d) Invitees – must use reasonable care in maintaining the premises and in their activities

(1) Conditions

(a) Duty to inspect – must take affirmative steps to discover dangers on the property

i) Look around, test railing, see if lights are out

(b) Standard is what they knew plus what they should have known

i) Wyckoff/Tubing case

(c) Where the danger can be eliminated w/ limited effort or poses great harm, a warning about the danger may be inadequate

i) Learned Hand