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University of Denver School of Law
Smith, Catherine E.

Monday, August 30, 2010
10:38 AM
4 underlying principles of tort law
1.       Compensation
2.       Deterrence
3.       Punishment
4.       Fairness
Types of Duty:
·         Creation of an unreasonable risk
·         Special Relationship
·         Voluntarily assuming/worse condition or unreasonable
·         Statute (whenever there isn't a statute stated in the test, always assume, and state that you assume, there is no statute regarding this issue)
·         Promise and Reliance
·         Contract
·         Non-negligent creation of a risk
  I.            Duty: Obligation to Others: the legally recognized relationship between the D and the P that creates an obligation the D to conform to act reasonably under the circumstances.
                   a.            Harper v. Herman: When D took P on a cruise and P dove off boat into water and severed spine, becoming a quadriplegic, the court held that in order for D to have a duty he would need to have a special relationship:
                                       ·            Special Relationships: Husband/Wife, Parent/Child, Common carrier, contractual/business relationship, innkeeper, possessors of land who hold it open to the public, persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection; however
             §   Actual Knowledge of a dangerous condition tends to impose a special duty to do something about that condition; however, superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence.
                                       ·            Exceptions to the no affirmative duty rule
             §   Special relationships
             §   Non-negligent injury: one who innocently injured another has ho duty to exercise due care to the other's subsequent wellbeing…
                                                                         a.            No duty to help out the trespasser who was run over by a train in D's train yard (Union Pacific v. Cappier)
                                                                        b.            But, this attitude is fading. The court imposed a duty on the D when D's employees knew about P's plight, but did nothing to help him, when P was attempting to board D's train, the train jerked,  fell off, and was run over, losing an arm, among other things. (Maldonado v. Southern Pacific Transportation Co)
                                                                                             i.            2d Restatement 322:
                                                                                                             1.            If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such harm.
             §   Non-negligent creation of risk
                                                                         a.            If a person creates a risk, they have a duty to use due care to remove the hazard or warn others of it, even if not liable for creating the hazard. (Simonsen v. Thorin: D drove into a light pole and it fell into the street…he left and a motorist ran into the pole.)
                                                                                             i.            But bystanders have no duty because they didn't create the risk. In fact, if a bystander doesn't voluntarily assume a duty by acting affirmatively to induce P to rely on him, and doesn't create the peril or change the nature of the existing risk there is no liability. Knowledge of the danger alone does not create a special relationship. (Menu v. Minor: A driver lost control of his car, hit the median, became disabled and blocked a lane. A taxi cab picked up the driver, and later another car hit the disabled care. P sued the taxi driver/company).
                                                                        b.            From RST S. 321, one who has done an act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another is under a duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk. (Tresemer v. : When a physician gave a procedure to a woman, two years after the procedure was found to be harmful…woman found out a year later, after the previous two years, and suffered injury because of it. The court held that a duty existed.)
                                       ·            Distinction between ordinary duty of reasonable care and the no-duty rule, in other words, acts of commission (reasonably care) and acts of omission (no -duty rule)
             §   A court held that a gas utility has a duty to warn its customer of dangers of which it knows , even though the danger is due to fittings in the home that were not provided by the utility and not under its control (Adams v. Northern Illinois Gas Co.)
             §   A person has no duty of care for things that are not their own property unless they attempt to eliminate the danger. (Galindo v. Town of Clarkstown)
                  b.            Farwell v. Keaton: There are two ways to have a duty for someone else: (1) when a person attempts to aid the victim, and if there is a (2) special relationship between the person and the victim.
Regarding the every person has a legal duty first way, every person has a legal duty to avoid affirmative acts which may make a situation worse. If the defendant does attempt to aid, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. That D will then be liable for a failure to use reasonable care for the protection of P's interests.
If there is a special relationship between the two parties, and if D knew or should have known of the other person's peril, he is required to render reasonable care under all the circumstances.
                 §   Apparently, people engaged in a social venture now fall under this special relationship category. This is because in this kind of undertaking there is an understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself.
                                       ·            Special Relationship
             §   IF a person is in a group of people who are doing drugs, they have a legal duty to restrain the driver, who is also doing the drugs, to restrain that driver before his negligence injures others in the group. ( Ronald M. v. White)
                                       ·            Role of a Jury: the RST

ds up relying on the misrepresentation. This happened when a school district gave out false information to other school districts regarding a man who had sexual misconduct with a student, resulting in the sexual abuse of another student.
Reliance on that misrepresentation
Foreseeability of the harm
                                       ·            Foreseeability or likelihood  of the harm caused…in other words, was the negligent act at issue sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party…the jury considers the foreseeability of injury in determining whether the conduct was negligent in the first place. (Ballard v. Uribe)
             §   Note that the RST says that foreseeability cannot be usefully assessed
                                       ·            Just because someone does not have a duty to speak, that doesn't mean they are entitled to speak falsely. Instead, having chosen to speak, one has a duty to use reasonable care in speaking. (Garcia v. Superior Court: A woman was killed by a person on parole when the parole officer told her not to worry about the guy, but she had expressed concern about him…the court found there was a duty.)
                                       ·            Giving false statements gives rise to liability. (Boon v. Rivera: The court ruled that a woman had liability because she made a false statement, but if she had not said anything, or else had told the truth, there would have been no liability, when a police officer showed up to a 911 call, was told by the wife that the husband wasn't dangerous, and then was shot by the husband.)
                                       ·            Suing Adoption Agencies:
             §   In Jackson v. State, where the state didn't tell some prospective parents known information, including the results of a psychological evaluations performed on the child's biological parents, the court held that D was subject to a duty of due care based on its providing background information to the Ps.
                                       ·            Factor approaches usually come into play when a court sees a situation in which there might be a case that an exception to the no-affirmative-duty rule is necessary: All of these factors show attempts to break down the no-affirmative-duty rule.
Here the court came up with 5 factors for determining if there is a duty: (1) relationship between parties, (2) social utility of the actor's conduct, (3) nature of risk imposed and the foreseeability of the harm incurred, (4) consequences of imposing a duty on the actor, and (5) the overall public interest in the proposed solution. (Atcovitz v. Gulph Mills Tennis Club: the court came up with these