Torts
Leonard
Spring 2015
I. Affirmative Duties
A. Duty to Rescue
i. General Rule: no affirmative duty to warn, aid, or rescue (Good Samaritan Rule—moral obligation, not legally binding) Unless there is a special relationship OR the defendant created the peril
v Buch v. Amory Manufacturing: defendant not liable to 8 yr old plaintiff bc the fact that child cannot appreciate risk doesn’t impose legal duty on defendant; defendant didn’t cause injury to plaintiff therefore no legal duty/no special relationship
v Hurley v. Eddingfield: although defendant was the only doctor available to help plaintiff and they had a previous dr-patient relationship the dr had no legal duty to help bc there was no current contractual relationship btw them
v Yania v. Bigan: defendant not liable although he “enticed” plaintiff to jump in water, “failed to warn plaintiff of danger”, and “failed to rescue plaintiff”; only liable if defendant placed plaintiff in danger (liability only established where defendant is legally responsible in whole/part for placing plaintiff in peril)
v Hypo: A drowning, B sees someone drowning, goes out to save him; once he sees it’s someone he doesn’t like he denies rescue; A drowns
a. B not liable bc he never took charge of A
b. Duty is only reasonable care (when voluntarily undertake duty; so if he goes out and attempts to save but realizes it’s too dangerous and turns around he isn’t liable)
v Louisville & Nash RR v. Scruggs: train blocked track so fire truck couldn’t pass/knowing situation train refused to move & by the time the firemen made it to the plaintiff’s house it was destroyed; court found that there was no duty for RR to move; Rule: no duty to help another preserve their property; only duty is not to injure another’s property by use of your own; RR not required to help, only required to not interfere with rescue; in this case there was no direct interference which is why defendant is not liable
*Montgomery not precedent bc defendant didn’t cause danger to plaintiff
àSoldano v. Daniels: (RST Section 327: liable for preventing 3rd party from rendering aid)
RST SECTION 327: ANY PERSON WHO KNOWS OR HAS REAOSN TO KNOW THAT A THIRD PARTY IS GIVING OR IS READY TO GIVE ANOTHER AID NECESSARY TO PREVENT PHYSICAL HARM IS LIABLE IF HE PREVENTS OR DISABLES THIRD PARTY FROM RENDERING AID
à SOLDANO: follows RST; liable for interference
àPLOOF V. PUTNAM: required to allow plaintiff to save himself/property but not required to help him do so; refusal to allow property to be commandeered is ok
àSTRICT LIABILITY LIMITATION: LOUSIVILLE V. SCRUGGS
ii. Statutes can alter common law rule in 2 ways:
1. Induces rescue by protecting potential rescuer from liability (but no duty to act) *carrot
2. Imposes duty to rescue (subject to fines if don’t rescue) *stick
àIn both cases, liable for willful misconduct
B. Policy Arguments for/against duty to rescue:
Pro-Duty
Anti-Duty (no duty to rescue)
· Morality
· Utilitarian—if cost to rescuer is less than cost to victim, should rescue
· Where to draw line?
· Autonomy/freedom of action/contract (presuming ppl would want rescue is intrusive; would rather allow individuals to contract with each other)
· Deterring rescue (if liable once undertaking better not to rescue)
· How to identify person to sue? (practical problem) *EX: crowd of people Stockberger—no liability for co-workers who let hypoglycemic co-worker drive home
· Cheapens altruism if required by law
Ø Exceptions to no duty to rescue: (once duty arises standard is still negligence—reasonable care)
1. Defendant assumed duty to rescue by meddling
v Zelenko v. Gimbel Bros.: defendant [shopkeeper] had no duty to plaintiff [customer] who got sick in the store, but assumed the duty when he kept customer in store’s infirmary separated from others and didn’t render aid)
àWasn’t reasonable to leave plaintiff in infirmary w/out medical attention
àCustomer was in a worse position after aid
*Not liable if:
1.) Defendant realized nothing could be done & sent her back out, not liable bc she isn’t worse off
2.) If defendant called 911: duty arises and liable only if they took 100% charge of plaintiff/denied others opp to help
v 2nd RST 324: once take charge of person who is helpless there is a duty; liable if
a. Doesn’t take reasonable care or
b. Discontinues aid/leaves person in a worse position
2. Defendant was willfully negligent for failing to warn reasonably/effectively (misfeasance v. nonfeasance)
v Montgomery v. Nat’l Convoy: (COMPLEX ACT) defendant liable for willfully/negligently failing to warn reasonably/effectively; (court referenced Newton v. Ellis: defendant dug hole/left it uncovered and didn’t light/plaintiff was injured *misfeasance—complex act [making hole + failure to light/cover] similar to this case: blocking highway + failure to warn)
v 3rd RST: codified rule established in Montgomery: duty to minimize harm from previous conduct (through reasonable care)
C. Duties of Owners & Occupiers of Land (source of duty) *both land owners & occupiers are liable
i. Old standard view (Common law approach—Robert Addie & Sons): status of plaintiff is determinative of the standard of duty owed—bc child was a trespasser, defendant owed him no duty to protect him from injury
ii. New/modern view: status matters but is not determinative
* Applies to both land owners/occupants for liability
*Argue both views on the exam!!
iii. 3 categories & duties owed
Invitee
Licensee
Trespasser
· Reasonable care that premises are safe
RST Section 332
· No duty to ensure premises are safe
· Bound not to create trap/allow concealed danger that is known or ought to be known to landowner, but is not apparent to visitor
· No duty of reasonable care
· Not duty to protect from concealed danger
· Enters at own risk
Duties by Categories:
Ø Invitee:
RST Section 332
1.) Public or business
2.) Public invitee—invited to enter or remain on land as a member of the public for a purpose for which land is held open to the public
3.) Business visitor—person invited to enter or remain on land for a purpose directly/indirectly connected with business dealings with possessor of the land
àHypo: invites bible salesman to bible study group; snows the night before & fails to clear driveway; salesman falls and is injured; liable?—Yes
1. Invitee can be either the public or business
2. Nature of premises not the nature of the visit is relevant in determining status (those who run businesses or those generally open to the public are subject to the rules of invitees); those who maintain private residential premises are not
àExceptions:
1. Assumption of the risk defense to duty: (burden on defendant to prove)
Ward v. Kmart:
Plaintiff (invitee) ran into post & was injured while leaving store
Plaintiff knew about post , but not considered assumption of the risk bc placement of post makes injury foreseeable/burden on defendant to protect plaintiff was slight
Social Guest/didn’t expect payment:
2. Private understandings can alter standard of care:
Lemon v. Bussey
Grandmother was church employee; took granddaughter to church with her (for her own convenience) church didn’t supervise the child at any time; child was killed after falling off roof (licensee—therefore no recovery)
Post v. Lunney
Paid to tour estates; tripped/injured court originally labeled her as a licensee bc the money she paid for the tour did not go directly to home owner (old requirement: no mutual benefit to be considered invitee); SC rejected and said plaintiff was a public invitee since estate owner opened up her home for tour
Knorpp v. Hale: (tree cutting)
D. Gratuitous Undertakings (source of duty)
Ø How to establish voluntary undertaking:
1. Increase risk of harm to plaintiff
2. Reliance must be must be by particular plaintiff or someone who would protect plaintiff (ex: mother) bc defendant’s behavior makes plaintiff less cautious
3. If plaintiff was reasonable in relying on defendant
Coggs v. Bernard: (trust in defendant)
o Defendant agreed to watch plaintiff’s stuff; had to move barrels and did so negligently causing damage to property
o Fails as a matter of ‘K’ bc no consideration (no payment or other benefit)
o Executory Agreement:
àAgree to do something, don’t do it = nonfeasance (no liability)
àAgree to do something, do it and cause harm = misfeasance (liability)
1. Neglect is deceit to bailor
2. Trust is sufficient consideration
Thorne v. Deas (misfeasance v. nonfeasance)
o Defendant says he will insure ship while plaintiff sailed, didn’t do so, ship was wrecked, and uninsured
o Court denied recovery bc it was
a. Nonfeasance (didn’t do it) not
b. Misfeasance (doing it poorly)
àCould argue wrong holding bc: reliance on promise to obtain insurance is as great as actually having insurance
(RST Section 90: reasonably expect person to rely)
àPromissory Estoppel: liable if promise reasonably causes plaintiff to change position (for worse) [reliance must be foreseeable; must be detrimental])
Erie RR v. Stewart
o Plaintiff struck by train; RR had watchman normally by tracks to warn if train was coming; plaintiff familiar with this practice & relied on it (took absence as sign track was clear: relying on RR’s self-appointed duty to provide watchman)
o No statute or ordinance to provide a watchman (but there was & if it was violated would be negligent per se)
o Plaintiff allowed to recover as a matter of law bc: duty is qualified rather than absolute; plaintiff relied on watchman
1. Reliance by particular plaintiff (not public)—actual reliance matters (without it, there is contributory negligence)
Ø RST Section 42: Duty Based On Undertaking
An actor who undertakes to render a service to another that actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:
a. Failure to exercise such care increases harm
b. Person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking
Marsalis v. LaSalle (reliance doesn’t require a helpless plaintiff)
o Plaintiff scratched by defendant’s cat; awarded medical expenses; defendant appeals
o Although defendants had no original duty, bc they agreed to do so, they had duty to keep cat in house for a month to determine if cat had rabies at the time it scratched plaintiff
o Defendants didn’t take extra precautions with how they handled cat and allowed it to escape; as a result, plaintiff had to undergo rabies treatments (painful, expensive, bad side effects)—plaintiff relied on defendant’s agreeing to restrain cat & therefore didn’t take steps of her own (getting shots, etc.) until after they allowed cat to escape/failed to uphold their promise
