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Torts II
University of Georgia School of Law
Wells, Michael L.

Torts II
Spring 2010
Michael Wells
A.      The Duty To Rescue
1)     Rule: Unlike the broad general negative duty (not to cause harm), there is no broad general affirmative duty (to prevent harm). 
·         So the question becomes, when do we make an exception to that rule?
·         Moral obligation is not the same as a legal obligation
o   However, worth noting that many legal duties are derived from moral duties.
a)     Buch: kid hurts hand in machinery à jury verdict for P was later overturned.  There was no duty, even though one could reasonably see harm to P.
b)     Hurley: Doctor is not liable for refusing to travel to treat a dying man.
c)      Stockberger: Posner refused to impose liability on coworkers of a hypoglycemic employee at a federal prison for allowing him to undertake his fatal drive home; Posner was bound by Indiana precedent.
2)     Ethical v Util Arguments re No Duty
a)     Bender:  Moral Argument/Interconnectedness
o   Moral obligations should also be legal obligations
o   The moral value of helping > interference w/ autonomy by imposing duty to help
b)     Ames:  Utilitarian Argument/Cost-Benefit Analysis
o   Make rules to achieve the greatest good for the greatest number of people
o   Can be overlap w/ moral argument
o   Having no duty not compatible w/ maximizing utility
o   Proposed Rule: should be a duty to perform easy rescues (little inconvenience to the person), and if someone fails to do so, he should be punished criminally
c)      Difference b/t Bender and Ames' arguments: reach same outcome as far as easy rescues, may have different conseq in other cases.  Concern re util argument ignoring ethical considerations à Kidney HYPO.
3)     Arguments for the “No Duty” Rule
a)     Autonomy and liberty (Epstein)
o   If we take liberty seriously, imposing a duty to help takes away that liberty
o   We have values that cause us to restrain liberty such as negative duty not to cause harm–it is not an absolute principle.
o   Autonomy is similarly not an absolute right—so why can't we impose a duty an interfere a little w/ autonomy?
o   Once forced exchanges are accepted, it is hard to know where liberty ends and obligation begins.
b)     “Reasonableness” is a flexible term, and it would be impossible to tell what is a reasonable rescue and what is not.  (Impossible to tell where contract ends and tort begins) (Epstein).  A clear distinction of “no duty” is a much brighter line. 
c)      Circle of potentially liable nonrescuers would be difficult to draw (Posner)
d)     Imposing a duty would deny people a credit for altruism. (Posner)
o   Hyman: statistically, individuals will rescue even w/o legal duty to do so, so we do not gain much by imposing a duty. 
e)     Deters people from being in a position to help for fear of liability if in position to help and fail to help (Posner)
4)    Posner's Critique of Epstein: Criticizing E for having no duty rule; if everyone came together, would pick an aff duty rule but transaction costs prohibit this from happening.
5)     Should the legislature change the common law rule of “no duty”?
a)    Kansas statute precludes rescuer from liability. 
o   BUT still be held liable for gross negligence.  (Vermont statute does this, too).
o   Hypo:  If you are a doctor's attorney—should he stop to help someone? still held liable for gross negligence, so statute not a big comfort.
b)     If do not perform the duty, can be held liable for criminal misdemeanor.
o   Seinfeld
o   So far, there has not been any tort liability. 
6)     Other Points
·         Rule that says expending resources for rescue deserves restitution (more of a contract issue)
·         Government and gov't officials cannot be sued on the affirmative duty theory.
o   However, distinct b/c governments are not people and do not have liberty or autonomy rights—therefore, have to base no affirmative duty on a different argument
B.      Exceptions to the No Duty Rule: Duty to Rescue
1)     Rule: If D creates danger, even if through no fault of his own, he must take reasonable steps to minimize the danger to others.  This is consistent with the universally accepted rule to not make the world a more dangerous place; cases not exceptions to no duty rule.
a)     Newton: D dug hole on public highway and left it unlit at night; P while driving fell into hole.  Ct found D liable for complex act of making hole and not putting up a light.
b)     Montgomery: truck stalled on an icy highway w/o their fault, but Ds failed to adequately warn oncoming drivers of danger ahead.  Ct found D liable for not performing duty owed to others using highway re harm.
c)      Weirum: not a case where there is any relationship; case should be taken as proximate cause case.  D liable b/c made world more dangerous.  (check these two cases, 642)
d)     Landgren v. Fultz: there is a relationship here but not about taking affirmative steps to prevent harm to third party.  Instead, straightforward case where psych makes world more dangerous; any issue would be prox cause, but likely not b/c psych could not reasonably forsee shooting.
2)     RST 327 (Interference Rule) renders any person who “knows or has reason to know that third person is giving or is ready to give another aid necessary to prevent physical harm to [an endangered person]” tortiously liable if he “negligently prevents or disables the third person from giving such aid.”
a)     Scruggs: Ds train stopped, blocking fire truck meant to extinguish fire in Ps house across the tracks à Ps house destroyed b/c D refused to move train w/o d

uation.  Ct denied Ps const claim.  P framed claim as const b/c state limited tort recovery re public entities.
c)      Policy considerations:
                                                                                 i.            Strong case against aff duties for ordinary people (autonomy, libertarian argument) not applicable to public entities b/c entities hire to protect and serve public. 
                                                                               ii.            Instead the “need for discretion” argument supports not imposing aff duties on public entities.  Limited resources are available to public entities and the cts should not interfere with effectiveness of public entities in determining how best to allocate resources by dictating how those resources should be spent. 
                                                                             iii.            W notes this argument has more or less weight depending on the circumstances.  For ex, if in Riss, policeman had been close by when P injured and could have easily intervened, harder to make case that no aff duty on policeman to help b/c no real resource allocation needed to prevent harm.  Some cts accept notion that where knowledge and opp to act, need for discretion argument doesn’t carry a lot of weight.
d)     Another basis for liability? KH v Morgan: Posner prepared to allow action against state officials when child taken into state custody and handed over to an individual whom the state knows or suspects to be a child abuser.  Here, the situation comparable to Montg à creating harm, so aff duty imposed.
C.      Duties of Owners and Occupiers
1)     Overview
·         Traditional approach: status of entrant determines duty owed by land owner.
·         Modern approach: status of entrant may have some bearing on yhr question of liability, but it is not determinative.
o   Gould: D guilty of willful and wanton conduct for not securing screen in window that P (two-year old) fell through.  D held liable even though P trespasser.  Here see tension re traditional approach à pressure for changing old approach strongest re children.
·         In Gribbon, traditional approach governs but pressure for change so also make modern approach arguments.