Select Page

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

Spring 2008 Torts Outline (Long)
I. Negligence Duty:
a. Key Questions:
i. Is there a legal obligation to use reasonable care to avoid harm?
ii. What is the legal scope of obligation?
b. Affirmative Duties: Negligent omissions (person could have acted to prevent harm, but they did not do so)
i. Common Law Rule: There is no legal obligation to come to the rescue of another
ii. Cases:
1. Hagel v. Langsam: P sued university for permitting daughter to become associated w/ criminal conduct. Court rules for the D, finding that the university had no duty to act to prevent harm.
2. Hearly: Dr. has no duty to treat someone who is his patient (even if he is only one available to help)
iii. If no duty exists then it does not matter whether:
1. Conduct was reasonable (breach)
2. D had actual knowledge
3. D had ability to act w/ minimal economic cost
4. Customary practice of others in D positions
iv. Policy Rationale
1. Law rejects duty to rescue because forcing certain acts infringes on the liberty of other individuals
a. Forced Exchange: Even if something is economically rational behavior, forced behavior is still bad because it infringes on a person’s individual liberties
b. Slippery Slope: Forcing people to act to save others creates a slippery slope (i.e. duty to give money to homeless person; duty to give kidney to friend)
2. If rescue turned into duty, it diminishes moral value of act (no moral quality for something done under compulsion)
a. If you do something truly voluntary then you have made a moral statement
b. This explains the Rescue Doctrine
v. Examples where there is no affirmative duty to act:
1. Professionals have no duty to help individuals who are in need of their services
a. Exception: Common carriers, innkeepers, public utilities are generally liable for failure to render services
vi. Qualifications to ‘No Duty to Act’:
1. A party can be liable in those situations where the danger was caused by the area in which they had a duty (i.e. university would be liable for athletic events, university activities)
2. Universities have an obligation for conditions on their premises, but no obligation for relationships that students develop with others (as in Hegel)
c. Exceptions to No Affirmative Duty Rule:
1. Any single criteria establishes an affirmative duty to act
ii. Special Relationship between P & D
a. No reciprocity: Note that duties are not reciprocal (invitee doesn’t have affirmative duty to invitor; employee doesn’t have affirmative duty to invitee)
i. Rationale: Salesperson or employer is “master of domain”
ii. Could be argued either way (on exam)
b. D does not have to be responsible for putting P into peril to have duty to rescue them
2. Invitee – Invitor Relationship
a. L.S. Ayres & Hicks: Boy’s fingers caught in escalator. D unreasonably delayed stopping the escalator. Trial court finds that store has a duty to rescue
i. Plaintiffs were invitees, store was the invitor
ii. Only negligent act was in not helping once P was already injured
b. Rationale:
i. By offering/inviting an individual onto property, D avails themselves to liability for the harm to P (liberty not impinged b/c duty arises out of a voluntary choice)
ii. Economic Motive: D intends to profit off individuals who come into the store
3. Employer – Employee Relationship
a. Duty exists regardless of whether an injury is work-related
b. Ex. Ship master – seaman
c. Exceptions:
i. Limited to situations where the employee is evidently unable to look after himself
ii. Limited to the course of employment
4. Common carrier – passenger Relationship
5. Innkeeper – guest relationship
6. Temporary legal custodian – charge
a. Teacher – student
7. Occupier – entrant onto land
8. Bar owner – patron
a. No duty to call police on behalf of person threatened outside establishment
b. Duty to permit another person to use the phone to call police
9. Husband- Wife
10. Parent – Child
11. Person who has negligently injured another – victim
12. D who creates dangerous condition in highway
13. Hit and run drivers (in some states)
iii. Sole Instrumentality: Relationship between the D and the thing that triggered the need for a rescue
a. (Because D is responsible for his things, there is no libertarian objection)
2. Elements:
a. Happening of accident gives rise to a legal duty
b. Duty is not based on fault, even person who is innocent still has a duty to rescue (no initial negligence required)
3. Examples:
a. Fact that D was hurt on store’s escalator creates an affirmative duty to act to save P.
b. If two individuals are in a wreck, then there is a duty for each to help the other regardless of who is at fault in the accident
iv. Special Undertaking with Detrimental Reliance: Where D assumes a responsibility to act and such undertaking increases the risk of harm or is relied upon by the P to her detriment.
1. Elements:
a. D’s voluntary undertaking AND
i. Undertaking may be to guard a person against the negligent or criminal acts of others
b. Increased risk of harm to the defendant OR
i. I.e. Action secludes others from helping to save life of person drowning
ii. Leaves defendant in more dangerous position than he would have otherwise been in
c. Plaintiff’s detrimental reliance upon that undertaking
i. Standard for proving reliance determines how many affirmative duties are created by the rule
1. Tough standard has fewer affirmative duties
2. Lax standard for reliance would create more affirmative duties
ii. Examples:
1. D failed to notify P that they were releasing a dangerous prisoner that she had helped to put away. Reliance hard to prove (‘but for affirmative act, outcome would have been different?”)
2. Good Samaritan Statutes
a. Problem: From Liability Standpoint, person is better off simply walking away than attempting to help a victim and then messing up
b. Good Samaritan Statutes: If somebody in good faith tries to help another person during an emergency situation, that person is shielded from liability
i. Removes disincentive to act
c. Limitations by Jurisdiction:
i. Some states (CA) only protect persons who have a license to rescue such as doctors and emergency professionals
1. Rationale:
a. State has strong reason for emergency professionals to get involved in emergency situations
b. Shielding untrained professionals from liability may increase accidents and mistakes at the scene of the emergency
ii. Some states only protect those persons who do not have a preexisting duty to help (i.e. store owner/invitor would not be shielded from liability)
iii. Some states limit protection to untrained individuals (untrained individuals who help and do something stupid are not shielded from liability)
iv. Some states (CA) require that the rescue be conducted in good faith
1. To sue, P would have to prove that rescue not in good faith (high standard)
v. Some states shield for everything except for gross negligence
d. Special Relationship between defendant and person who poises danger to the plaintiff (third parties)
1. Standard: Defendant liable for failing to use the care of a reasonable person under the circumstances
ii. Defendant stands in special relationship to the plaintiff that requires him to exercise affirmative care to protect him against the conduct of the third person
1. Examples
a. Duty of common carrier to its passengers to prevent personal attacks upon them, theft of their property, or negligent conduct that threatens to injure them
iii. D stands in a special relation to the 3rd person that gives him a power of control over that person’s actions.
1. D therefore required to use reasonable care to exercise control to prevent the 3rd party from injuring P
a. In these cases, D liable only for failure to exercise care of reasonable person in circumstances
b. Examples:
i. Parent-child
ii. Employer-employee
iii. Automobile owner-driver
iv. Those responsible for lunatics, criminals, or persons with contagious diseases
iv. Particularized knowledge (particularized foreseeability)
1. Husband-Wife Relationship
a. In an instance such as a marital relationship, the spouse must have particularized knowledge or a special reason to know
i. Requirement of ‘particularized knowledge’ reflects social judgment of forcing people to act to protect others from harm at hands of 3rd par

ess to treat potentially dangerous patients
vi. Other ‘Duty to Warn Situations’
1. Generalized Threats: Split in authority
a. Some jurisdictions required a specific threat to an individual while others establish a duty for a generalized or semi-generalized threat
2. Suicidal Threats:
a. Split in authority
i. California has found no duty to warn
ii. Maryland has found a duty to warn
c. Duty has been found to not prohibit others from rescuing or assisting
i. Soldano v. Daniels: Man at saloon threatened, guy comes across street to call police. Innkeeper does not let him. Man is shot by customer in saloon. Innkeeper sued by man’s family
1. Very attenuated duty to help:
a. Premised largely on D’s capacity to help
b. Supported in this instance because:
i. Benefit strongly outweighs the burden
ii. Inn is commercial property open to the public
iii. No requirement of innkeeper to be good Samaritan
2. Factors on which duty is premised:
a. Foreseeability of harm
b. Certainty of decedent’s injuries
c. Connection between conduct and injury
d. Promotes policy of preventing future harm
3. Based on Soldano standards, it appears there would always be a duty to rescue
a. Establishes very broad idea of affirmative duties
b. If Soldono is widely applied, then it appears that exceptions swallow up the general rule of ‘no duty to act’
4. Note: No cause of action exists when someone screws up during time of emergency (bartender dials 912).
ii. Georgia: Statute says that one MUST act
1. Similar to Dutch, French, and European statutes
2. Key Questions:
a. How easy would it be to enforce
b. Must determine when a duty would be triggered
e. Pure Economic Loss
i. Pure Economic Loss arises when a person suffers pecuniary loss not consequent upon injury to his person or property. This case falls into two categories:
1. Negligent misrepresentation or misstatement causing economic loss; and
2. Negligent acts causing economic loss
a. If a harm is a pure economic loss, the courts take seriously the claim that liability should be restricted
b. Courts have found, sometimes narrowly and sometimes broadly, a duty of care to parties outside privity of contract
3. American Majority Rule: A person can sue for damages from pure economic loss only where they have a proprietary interest in the person or property that is damaged
a. Rationale:
i. Limitation ensures that there are not infinite claims from individuals arguing economic loss
ii. Prevents overdeterrence
1. If a tortfeasor had to compensate everyone who could prove economic loss, culpability would be disproportionate to liability. Risk may become so great that defendant is prevented from engaging in that activity
b. State of Louisiana ex. Rel. Guste v. M/V Testbank: Collision between two ships results in cloud of hydrobromic acid and PCP dumped into Mississippi River. Dump shuts down all navigation in that part of the river. Causes all fishing, shrimping, and related activity to be suspended. Additionally, restaurants, marinas, trackle & bait shops, employees and industries suffer economic loss.
i. Court determines that a suit can only be brought for economic loss when there is physical injury to some property that has proprietary interest
1. Commercial fisherman were permitted to sue because they had a proprietary interest in the river
c. Benefits of Majority Rule