AFFIRMATIVE DUTIES
a. Generally- No duty to act for benefit of other- i.e. the law does not usually require you to do something to prevent harm/ no liability for non-feasance (no act)
i. Ex. Hegel v. Langstram – university does not have a legal duty to protect its students, or act as nursemaid, or stop them from using drugs, etc. in their private affairs
ii. Even with medical Care- Ex. Hedenfield- Dr. has no legal obligation to accept someone as a patient, even though the AMA suggests it
b. Reasons (Epstein article)
i. Libertarian- if gov. (acting through courts) can compel you to act for the benefit of others, then your individual liberty is in jeopardy
ii. The no-duty rule preserves the moral worth of volunteerism and charity- than if you were doing it under gov. compulsion
c. Exceptions to no-duty rule- Eaton told us first three
i. If there is a special relationship between P and D-
1. Examples
a. Inviter/ Invitee and Business relationships – Ex. LS Ayers Co. v. Hicks- six year old in store gets finger caught in escalator. Store is the invitor and child is invitee, which means that store has an obligation to render help
b. Employer/ Employee, Master/Servant
c. Innkeeper/Guest
d. Common Carrier/Passenger- buses
e. Temporary Legal Custodians- school/pupil, hospital/patient?
f. FAMILY relationships- parent/child
2. Reasons to impose a duty when the law does not usually
a. Voluntary relationships, expectation of financial gain, shared expectations of society
3. Should this duty be reciprocal if the tables are turned? Even though the reasons are the same, that one person no longer has responsibility to protect the other- so it is debateable
4. Trespassers? -Now, you do have to rescue a trespasser in trouble, but a long time ago, you didn’t have to.
ii. Instrumentality- if P has a need for rescue because of the D’s object
1. Traditionally applied only to negligent acts of the D, but now applies also any innocent act of the D even when the D is not at fault
a. Car wrecks- you have a duty to rescue the other person even if the accident wasn’t your fault
b. Ex. Hicks- the store provided the elevator
2. Less of a Libertarian objection, because your stuff creates harm to someone else
3. So, now, even if your stuff is innocent, and the D has no fault
iii. Undertaking/ Assumption of Duty
1. D didn’t have an initial obligation to help, but you can be liable if you start to render aid and you stop- you need to proceed with reasonable care, and may not discontinue aid
2. Elements
a. Your help makes it worse or
b. Other people rely on your help to their detriment
i. Detrimental reliance- has to be either by the P or a third party- usually no concrete evidence to this effect
ii. Examples
· Past custom- school provides crossing guard, then removes it, kid gets hit
· Promise to assist- originally not undertaking, but by modern interpretation, it is
3. If you really have a choice, then you are better off not undertaking to help-you will not be guilty by not helping
4. Why? Because your undertaking prevents others who might be more qualified from assisting.
5. Ex. in a pre-employment physical exam- once an employer undertakes to conduct an examination, they must do and report the results properly
iv. Common Pursuit
1. If the P and D are co-venturers, companions on a social venture or are engaged in a common undertaking, then sometimes a ct. will impose a duty
a. Two go camping trip, a jog, etc.
b.
v. AND those in a Special Position to know- D/Third Party Relationships
1. D might have had a duty to control the third party
2. Does a wife have a duty to protect others from her husband? (Ex. JS and MS v RTH)
a. Some cts. will say yes esp. in sex. abuse of a minor cases
i. Thru an exercise of judgment that some duty should be recognized, rather than finds truth/acts as scienter
b. When there is Particularized knowledge- when a person who should have known, or had special reason to know- a duty can be imposed
i. Factors of imposition of duty 1.) foreseeability, 2.) interests of the P and D, 3.) fairness and public policy, 4.) scope of duty
c. In these cases, public interest-
i. in protecting children outweighs the intrusion that recognizing the duty might have to the marital relationship (in false positives, finding fault where there is none)
d. Also need to analyze other elements of negligence
i. Breach-what does reasonable care require? Warning kids, kids parents, going to police, confronting husband, etc. All, some or none? If there is a duty, you still must analyze if there is an act or omission that was unreasonable
ii. Causation- under but-for test, or proximate cause test?
· In this case, the proximate cause issue is evaporated. P was a foreseeable victim, and sexual abuse was a foreseeable harm. Wagon Mound and Palsgraph problem is taken care of.
e. What would a dissenting opinion say? For the wife?
3. Psychiatrist- special relationship between psychiatrist and patient (Ex. Tarasoff)
a. Psychotherapist does have a duty to the victim (public) as well as a duty to the patient- the dr. himself is not a source of harm an increase in harm, or a motivator of the harm, no one relied on the Dr to protect the victim.
i. Here, the public’s interest in safety outweighs the patient’s interest in confidentiality
b. What duty is owed?
i. Duty to warn, not to stop or confine
c. Reason for duty
i. Rests on what court perceives the Dr’s ability to be in a special position to help
d. Duty is owed to an identifiable victim for sure, but cts are split as to unidentified victims (i.e. I want to blow up an abortion clinic)
i. If someone threatens suicide, then the therapist does have a duty to warn someone
e. Don’t forget to examine-reasonable care and breach of it- this is a medical malpractice case, and most likely, the Dr here probably did all necessary dr-like things. Here though- need to look to informed consent
i. Informed Consent- would other drs in the same situation have to inform their patients that if they threaten anyone, the dr will have to warn the cops
· Under the Patient materiality- CA- Yes-
· Under the Customs of the profession- maybe not
f. Criticisms of Tarasoff
i. Unfair to D because predictions about dangerousness are notoriously inaccurate, puts Drs in awkward position
ii. Compromises confidentiality- counseling will be counterproductive if the patient won’t talk
4. These cases shows a societal shift in judgment about responsibility- more people have more obligations to others- compelled interdependency
5. What about these relationships makes them special? Special knowledge, more responsibility, identity of potential victim?
a. Then you can figure out who else has a duty and whom it is owed to.
d. General Broadening of the duty-
i. Ex. Soldono- one property owner must make his property/phone a
Emotional Distress includes- pain and suffering, fright at the time of injury, anxiety about possibility of event happening again, humiliation, etc.
c. Other Rules and Limits for negligent infliction of emotional distress- Several different Rules
i. Impact Rule- parasitic recovery- if you have had some injurious physical impact, then you can recover- called parasitic b/c the claim for emotional distress cannot be maintained independently of physical harm
1. Why? B/c then the jury can be sure that the emotional distress is not fake
2. Exceptions to the rules above in sui generis cases (unique cases)
a. Telegraphic companies (said a loved one has died)
b. Negligent mishandling of corpses
3. Eventual Dilutions of the Impact rule lead to rules below
a. Impact can be minor or electric shock, evacuation of horse’s bowels into lap of P
b. Cts eventually abandon the rule that there can be no recovery for purely emotional harm, as long as there is some physical symptom (nightmare, fright, etc.) that accompanies it.
1. Like when allowing recovery for misdiagnosis of syphilis
ii. Definite Physical Injury (MI)- P is not touched by D’s negligence, but if P suffers from definite and objective physical injury, P can recover for emotional distress proximately caused by D’s negligence- must look to past cases/jury issue
1. Exception: No recovery for hypersensitivity- this is consistent with the Thin Skull Rule- if you have a hypersensitive P then no emotional injury was foreseeable
2. Ex. Daley v. La Croix- definite physical injury can be nervousness, loss of weight, etc.
iii. Zone of Danger Test- (CA) no impact needed, no definite objective physical harm needed- but as long as you are within the zone of danger for being hit and you witnessed someone being harmed
1. The recovery is not for their fright for themselves, but for the fear they felt when someone close to them was injured
2. Prob- a bystander can be just as scared as someone who is right there- eventually, this rule too is abandoned by several states
3. Second Restatement is all about the zone of danger test
iv. Bystander Rule/Dillon Test/Modified foreseeability Rule, but that is too broad- Ex. in Dillon v. Legg and Thing v. La Chusa)
1. Elements
a. P must be closely related by blood or marriage
1. Problem- who is closely enough related? Grandparents? Committed life partner? Or should there be a case by case basis.
b. P must be in close physical area with the accident
1. However, relative who is not present at the scene may maybe recover based on loss of consortium
c. P must have contemporaneous sensory observance of the accident/ aware of the accident
1. P whose child has been hit by a car is trying to recover- she cannot b/c she did not observe the accident (Ex. Thing v. La Chusa) However, Mom whose child was drowning – heard someone shouting Danny’s drowning- She could – b/c she reconstructed the scene
2. Expansion of liability with increase in technology- cell phones with pics, video, tv
d. P must have suffered prove-able emotional distress
2. Does this help to provide guidance for the court? Or a bright line rule? Nope.
3. Duty to public
v. Direct Victim Theory- the negligence of the D must be directed toward the P
1. Ex. Molien case v. Kaiser Foundation Hospitals (CA)- where husband was allowed to sue wife’s doctor when dr. negligently told wife she had syphilis and to talk to her husband.
2. Limits
