Torts Spring 2006 Outline
I. Duty
a. Failure to Act: the question is whether the defendant had an obligation to do something. When, if ever, does the defendant owe the plaintiff a duty? Remember: the question of reasonableness of the defendant’s conduct is irrelevant at this point – if there is no duty, then there is no need to evaluate reasonableness.
i. In General
1. General Rule: No duty to act to rescue or aid others in need of help
a. Examples
i. No duty to turn over a baby lying face down in a puddle
ii. No duty of doctor to see a patient brought to the hospital; or to help in an emergency when not on duty, at least not any more than regular person
1. But there would be a duty if a patient collapses in the doctor’s office
2. Procedural effect: D never has to face the jury on whether conduct was reasonable.
a. Even if a P shows that there was a duty he still has to prove breach, causation, and harm although proximate cause may pretty much already be covered.
3. Policy arguments for not having a duty:
a. Primary—It would infringe on personal freedom to choose to act or not (Libertarian)
b. Secondary—It would diminish the moral worth of helping others voluntarily
c. It would be hard to know where to draw the line between individual liberty and social interference (where does duty arise?)
4. Hegel v. Langsam: University did not have a duty to regulate the private life of P’s daughter who was a student there, because her acts were outside of the campus.
ii. Exceptions: There can be a legal obligation to take affirmative steps to rescue a person who is helpless or in danger, or if there is a particular relationship between P and D.
1. Relationship:
a. Common Carrier/Passenger
i. Held to have undertaken an obligation to serve the public
ii. Based on an implied warranty of safety
b. Innkeeper/Guest
i. Based on an implied warranty of safety and guest’s expectations
c. Master/Servant
d. Parent/Child
e. Invitor/Invitee
i. Held to imply that the premises will be safe
ii. Based on the trust between the two parties
iii. L.S. Ayres & Co. v. Hicks: Boy fell and got his fingers caught in D’s escalator; D had duty as invitor to not aggravate the boy’s injuries by delaying the stopping of the escalator
f. Injuror/Injured
i. If D negligently injures P, he is then under a duty to take reasonable affirmative action to aid P.
ii. If D, without negligence, creates a dangerous condition on highway, he is then under a duty to take reasonable precautions against injury to persons using it.
iii. “Hit and run driver” statutes require the driver to stop and give aid or failure to do so is negligence per se. Anytime in a car accident have a duty to help, but only have to do what is reasonable.
g. Custodial (confinement in prison or mental institution)
h. Employer/Employee
i. NOTE: The common thread between most of these relationships is that they were entered into voluntarily and have some shared expectations; but are they reciprocal? No, one has given up some control over his own safety while the other has not. This has not been tried yet but I will go with this to defend my answer.
2. Control of instrumentality:
a. D is held to be responsible for his things (more so than that he is responsible for P)
b. Can even be a duty to a trespasser who is injured by an instrumentality under the landowner’s exclusive control
c. Applies in cases even if there is no fault (D can be t
r other potential rescuers
1. Thus, we have the Volunteer Protection Act (for Good Samaritans)
a. Policy: To eliminate the number of tort claims and reduce damages by immunizing volunteers from personal liability for torts they commit in the scope of their service.
2. Similar to rescue doctrine: Rescuers can sue the person who created the danger, even if the rescue is unforeseeable
iii. Draft of Good Samaritan statute: some good Samaritan statutes only apply to professionals because we want to give them incentives to help because they are more able, but do not want lay people to help because they may make the situation worse.
1. Also, people that already have a duty are generally not protected
2. There are often exceptions for gross negligence on protection
iii. Warnings of third parties when the Δ was in a special position to do something about the danger posed by another person
1. Duty to take affirmative action to control the conduct of a third party or to warn others of the third party’s conduct can arise if: (these cases reflect shift from individualistic view of responsibility to a more comprehensive view)
a. D has a special relationship to P
i. Example: Common carrier/passenger
b. D has a special relationship to the third party
i. Examples:
1. Parent/child
2. Employer/employee
3. Automobile owner/driver
2. Factors to look at to see if there should be a legal duty toward P for actions of a third party:
a. Nature of the underlying risk or harm (foreseeability and severity)
For a risk posed to a particular P, there must be actual knowledge or particularized foreseeability
