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Torts II
University of Georgia School of Law
Eaton, Thomas A.

Duty of Care

Section 2: Affirmative Duties
I. Duty – whether Δ had a legally enforceable obligation to use reasonable care
II. Affirmative Duty → Injury is caused by Δ’s unreasonable failure to prevent harm, not direct conduct
III. General rule = there is no duty to rescue
A. No duty to prevent someone from “falling in with the wrong crowd” unless there is a statute demanding such (Hegel v. Langsam→ 17 yr. old girl went to college & turned bad)
B. No duty for a Dr. to give aid in a medical situation – even with no good reason for refusing to help
C. No duty for a bystander to rescue someone in need of help (baby lying on the railroad tracks)
D. When there is no duty, no need to evaluate reasonableness of the actor’s conduct
1. Even if it is custom for the Δ to act, this only goes to support reasonableness
E. Justification:
1. Public policy in favor of individual autonomy
2. Anthology: Epstein article (p.179)
i. Imposing a duty to rescue would be a slippery slope to totalitarianism (you’d be forced to give money to every charity purporting to rescue people)
ii. If there’s a legal obligation to help others this would diminish the moral worth of rescuing people b/c no choice (doesn’t explain why preserving moral worth is better than preventing harm)
IV. Exceptions = there is a duty to rescue:
A. Special Relationships
1. Types of relationships:
i. Invitor/Invitee – because invitor benefits financially from presence of invitee
i. L.S. Ayres & Co. v. Smith – boy got fingers caught in escalator & Δ store delayed stopping it b/c they argued they had no duty; they did b/c the boy was an invitee.
ii. Cause of the harm doesn’t matter (could be a heart attack)
ii. Carrier/Passenger
iii. Employer/Employee
iv. Innkeeper/Guest
2. Why do these overcome the libertarian objection? **Be able to articulate or describe characteristics of these relationships that justify imposing a duty**
i. Δ voluntarily entered into the relationship (so not as concerned about the slippery slope or personal autonomy issue)
ii. Often monetary gain is also at stake
iii. Widely shared expectations of society
3. Duties created by relationships are not reciprocal
B. Instrumentalities
1. Instrumentalities in control of the Δ = duty where the instrumentality caused the injury.
2. Arises even where negligence did not cause the accident (ex: even though in Ay

undertaken to do so and the mom having relied upon that, they established a duty
4. Legally, you’re better off not undertaking the rescue b/c if you start to help & you botch it, you can be liable, but not if you just walk away – this is a perverse incentive
5. Good Samaritan Laws: doesn’t create a duty to rescue (as some places in Europe – NL), but provides for a limited immunity if you do
i. Object: to remove the economic disincentive to rescue
ii. Who should be given this protection? CA statute protects licensees (doctors and possibly other healthcare providers) who provide emergency assistance–can mean when a doctor is called from duties to assist somewhere else
i. Important to look at statutory construction
iii. When drafting, consider: Should it protect people who had a pre-existing duty to help, or only volunteers? Does it apply to everyone or just certain members of society? How broad should the scope be?
Expanding the realm of Duties