Select Page

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

Professor Tom Eaton

Torts II, Spring 2011 Exam

Grade Achieved: A


Generally: one engaged in risk-creating activities generally owes duty to avoid causing foreseeable personal injuries (emotional/property later) to foreseeable plantiffs

NONFEASANCE: A person does not have a legal obligation to act for the benefit of another unless person does something to activate said duty

· Hegel: university no obligation to rescue student when she got mixed up with drugs/crime, no obligation to regulate private lives of students

o Duty DOES exist: law and order (prevent crime) and not contribute to delinquency

· Little inconvenience risk to P invalid if no duty

Doctor rule: Hurley v. Eddingfield: doctor had no legal obligation treat woman shows up at house in need immediate care bc no previously existing doctor/patient relationship


· P not in context of case “versus D” any worse off because of D (violation of PC?)

· Individualism highly valued in legal system (Hegel: mature enough to get into college, mature enough to regulate own life)

· Outer edge: Yania v. Bigan when D DID entice P into jumping into pool of water (D hit head on obstuction hidden), D no duty to rescue bc P reasonable person shoulda known risks

· Libertarian idea that gov’t can already take your money in courts, shouldn’t be forced transactions of failure to act for benefit of others, slippery slope towards totalitarianism (Epstein)

· Diminish moral worth of beneficial acts

Pro-duty to rescue? Law should reflect moral values, small costs to society can result in large savings of harm (in case of no risk rescue), simplification of judicial system against complication of no-duty exceptions, male bias of no duty, increasingly compelled interconnectedness of society

Activation of a Duty and Exceptions to Nonfeasance Rule

1. D creates peril

a. Rest 2d 322: if (1) constructive knowledge that conduct (tortious or innocent) (2) that caused bodily harm to another and (4) made person helpless/danger future harm, THEN duty exercise reasonable care to prevent future harm

b. Instrumentality: D and P’s need for rescue: D obliged to act for persons endangered by D’s things. (Hicks)

i. Old RR no duty to help dude ran over even upon notice, BUT that has been mostly abandoned.

ii. Less libertarian objection, D’s things are intruding into other’s rights

iii. Innocent as well as negligent/etc instrumentality danger creation leads to duty; very important for car wreck cases

iv. Hit and run drivers: statutes require drivers to stop and get aid, can be negligence per se if hit and run driver (car helped cause injury, must help).

2. Special relationships between D and P:

a. Traditional: employers/employees (if employee clearly unable to help himself), common carriers/passengers, ship captain/seaman, where P most clearly entrusted safety to D.

b. Invitor/invitee: In L.S. Ayres v. Hicks, invitee to the shopping mall, invitors have obligations to rescue impaired inveitees from injury resulting in use of instrumentality in control of invitor (CAUTION: unclear if relationship alone sufficient in that case)

c. Characteristics of relationships that decrease liberty and lead to affirmative duties:

i. Party upon whom duty placed is in a better position to make accurate determinations about danger than other people would be. (Tarasoff, JS, instrumentality)

ii. Societal interest in preventing harm outweighs costs of imposing duty (state intrusion, same cases)

iii. Shift from individualism to collectivism? Tarasoff “compelled interdependency”. Resisted by many jrdx to extent of CA.

iv. See general guiding policies below

d. Relationships are voluntary, so strings attaches; party upon whom duty placed has expectation of financial (or whatever) gain from party that benefits from duty

e. Co-venturers: where victim and D common pursuit, some cts imposed duty of warning and assistance, CONTRAST the case with the pool of water

f. Problem: should duty be reciprocal? Aren’t the benefits symmetrical (employees, shoppers, guests, passengers) where duty is found? No case law really. Can argue position of control of premises/dangers easily though.

3. Undertaking and detrimental reliance

a. Negligent injury by D: duty to take reasonable affirmative action to aid the injured party

b. Rest 2d 323: If D undertakes [gratuitously or for consideration] services to another which D should recognize as necessary for the protection of the other’s person or things, duty to use reasonable care to perform undertaking IF

i. (a) failure to exercise care increases the risk of that harm, OR

ii. (b) the harm suffered because of the other’s reliance upon the undertaking.

iii. Point: undertaking alone insufficient

iv. Detrimental reliance policy: might include P’s lack of efforts, other observers moving on seeing D attempting to rescue

c. Florence v. Goldberg: once had crossing guard there before, people relied on crossing guard, had duty to use reasonable care, which was to maintain the guard, meaning no crossing guard is a breach

d. Worsening situation: RR taking drunk guy home, help him off train, but platform at bottom of very steep hill, leave him on stairs bc train leaving, in more dangerous position had they not undertaken, liability

e. Rest 2d 324: D takes charge of another helpless to aid or protect, THEN subject to liability to the other for any bodily harm caused to him by either

i. (a) D failure to exercise reasonable care to secure the safety, OR

ii. (b) D discontinuing his aid or protection, if leaves the other in a worse position than when the actor took charge of him.

f. Hospital establishing an ER: duty to allow P in need care access

g. Problem: worse off if you undertake, especially if reasonableness standard? Answer: GS Statutes. not an affirmative obligation, its immunity for those who do undertake.

i. Emergency Medical care: protecting doctors in course of emergency care only, broadly defined outside ER room as when doctor is volunteering AND no previous patient/doctor relationship with recipient (McKenna v. Cedars of Lebanon Hospital)

ii. Problem: some statutes limit to simple negligence, not gross/recklessness. Still deterrent if too hard for doctor to tell/predict the difference.

iii. Who gets protection? Usually extended to licensed healthcare providers, not just doctors.

iv. Mention: other tort law incentive that rescuing is per se reasonable if injured

h. OUTER LIMIT: Soldano, where no connection between D bar owner and rescuer of injured P (in bar across street), duty to allow rescuer to use telephone, so easy and each factor of general principles points towards duty, but not valuable precedent because no connection between D and rescuer.

4. Duty to control and protect

a. D stands in special relationship to P to protect from danger of 3rd person

i. Store owner, patron, obviously deranged person comes in and stabs patron

ii. See earlier

b. D stands in special relationship to 3rd person must be combined with some degree of knowledge of need to control

i. J.S. v. R.T.H.: when a spouse has actual knowledge or special reason to know of the likelihood of other spouse engaging in sexually abusive behavior against a particular person/persons, spouse1 has duty of care to take reasonable steps to prevent or warn of the harm. ALSO, breach of such duty constitutes proximate cause of resultant injury: sexual abuse of victim. 2 neighbor children over a year spent time with D2, D1 (heavy weight given to policy argument, particular foreseeability chosen).

ii. Weighing public need and individual opportunity to stop the sexual abuse with the cost

Corporation hire accounting company to issue statements, 3rd party is shareholders relying on what accountant says. As long as foreseeable relying on that, accountant’s negligence can account for a claim from a 3rd party.

· In GA, professional rule does not expand liability to foreseeability, instead limiting to actual notice

· Badische Corp. v. Caylor: 2 corporations sued CPA for accountant negligence in financial statements, relied upon to their injury. Held, CPA did not have notice of who would be given financial statements, therefore no liability. Refusal to expand GA rule (fed case, no jrdx).


(I) Generally: parasitic to physical injury only, skepticism of emotional distress as injury, fear fraudulent claims, very constrained as separate action.

· Why any recovery for money? A: Proposition that harm is real undisputed. B: deterrence C: Vindication; law makes social statement of a person’s value.

· Why not just apology? Good enough in Japan (social differences?). Feminist perspective: limiting to economic disadvantages minorities, women, older adults for whom econ is smaller % of harm.

· Historically: mental damages recognized by assault, FI

· General exceptions: Telegram of death; Dead bodies negligently handled

· 6 states have completely abandoned this rule against purely emotional harm recovery

(II) Impact Rule/Physical Injury Rule (Daley): one can recover for emotional distress only if there has been some physical impact as a result of D’s negligence and physical symptoms of emotional distress.

· Initial rule created was impact of some sort without showing of physical injury, but most courts abandoned that approach.

· Daley/MI ct expands, allows if evidence of “definite, objective physical injury” as a result of emotional distress caused by D’s negligence, substitute for impact; attempt at controlling floodgates, possibly not a good one given Daley facts (irritable, couldn’t do housework)

o Physical injury susceptible of objective determination (few limitations as shown by Daley, almost always goes to jury); Proximate cause (expert); Reasonable person standard

(III) Bystander rules: recover because someone else got hit, resulting in own emotional distress.

· Thing v. La Chusa: Child struck by D vehicle. Daughter informs mother, mother goes to scene and sees son injured, covered in blood. Mom sues for emotional distress

· Impact version: you have to get hit AND witness someone else get hurt

o Former GA rule, arbitrary because criteria not related to damages recoveing

· Zone of Danger: in zone such that could have been hit, witnessed another injured, emotional distress proximately caused

o Like impact rule, criteria unrelated to basis for recovery

o Difficult to extemporaneously determine zone, but less arbitrary

(IV) Zone of Danger overturned as arbitrary in Dillon v. Legg: further expanded to bystander rule, can recover for witnessing someone being injured, with limits: (1) must be close relation blood/marriage (2) within close physical proximity (3) contemporaneous sensory perception