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

Michael Wells, Torts II, Spring 2009
Torts—Spring Outline
Chapter 7—AFFIRMATIVE DUTIES
A. Introduction
a. So far we have been dealing w/ negative duties—an obligation not to cause harm to others. This chapter discusses situations when someone owes a positive or affirmative duty to help.
b. Unlike the broad general negative duty, there is no broad general affirmative duty.
i. So the question becomes, when do we make an exception to that rule?
c. Moral obligation is not the same as a legal obligation
i. Although, many legal duties are derived from moral duties–there is a lot of overlap
B. Duty to Rescue
a. Buch v. Amory Manufacturing Co.
i. Kid wanders into manufacturing plant to visit his brother (he is a trespasser). Supervisor told him to leave, but he did not speak English so he did not understand. Brother tried to teach him how to use machine, child got his hand caught and was injured.
ii. Ct. said no duty—Π would have lost even if he was not a trespasser
iii. Why didn’t Π win thru general principle to avoid causing harm to other people through reasonable care?
1. B/c that is a negative duty, and this would have been a positive duty—there was no affirmative duty to act
b. Hurley v. Eddingfield
i. Doctor not liable for refusing to travel to treat a dying man.
ii. No affirmative duty to act.
c. Ames, Law and Morals
i. Remember, utilitarian argument is to make rules to achieve the greatest good for the greatest number of people
1. Can be overlap w/ moral argument
ii. Having no affirmative duty is NOT compatible w/ maximizing utility
iii. There should be a duty to perform easy rescues (rescues that involve little or no inconvenience to the person), and if someone fails to do so, he should be punished criminally
1. If there is possibility of an easy rescue, the benefits are great and the cost is small
d. Bender, A Lawyer’s Primer on Feminist Theory and Tort
i. Moral obligations should also be legal obligations
ii. The moral value of helping > interference w/ autonomy by imposing duty to help
e. Difference in Ames’ and Bender’s Theories
i. Although both arguments get the same outcome in “easy rescue” case, they might have different consequences in other cases
ii. The moral argument prefers that the law be based on ethical arguments and not on the utilitarian principle b/c utilitarians treat all people as means, while ethical respects people as persons (everyone is an end and not a means)
1. The problem w/ utility, in principle, is that having a duty to perform an easy rescue is good—but what a/b when A needs a kidney, and B has 2. The utility argument would say A could just take a kidney. Demoralizing cost.
a. Ethical reasoning would not allow that
b. Can have duty of easy rescue w/out taking kidney
c. Would apply the same duty to the factory supervisor in Buch—not treating him as a means but an end.
2. Ethical reasoning abides by the Golden Rule. Treat everyone the way you would want to be treated. Emanuel Kant calls this the Theory of Universalisability. Applies to anyone and everyone.
f. Epstein, A Theory of Strict Liability
g. Posner, Epstein’s Tort Theory: A Critique
i. Wrote an essay criticizing Epstein’s essay for the “no duty” rule.
ii. It is possible, w/ concern for liberty as a starting point, to still have an affirmative duty (through K). Unfortunately, transaction costs (time, info, etc.) are too great to make everyone a party to the K. Could make a deal if not for these costs—b/c people would want to make this deal (to K for affirmative duty in easy rescue, for example).
iii. Stockberger
1. Π argued for an affirmative duty, and Posner said no in spite of his essay
2. The overriding reason for having no duty—-Posner was bound by Indiana precedent
3. Case where Posner came up w/ #3-5 (below) for no duty rule
h. Arguments for the “No Duty” Rule
i. Autonomy and liberty (Epstein)
1. If we take liberty seriously, imposing a duty to help takes away that liberty
2. However, recognize that there are restrictions on our liberty all the time—negative duties, speed limits, etc. (liberty not an absolute principle)
3. Autonomy is similarly not an absolute right—so why can’t we impose a duty that interferes a little w/ autonomy?
ii. Line Drawing Problem
1. Once forced exchanges are accepted, it is hard to know where liberty ends and obligation begins. “Reasonableness” is a flexible term.
2. Impossible to tell where K ends and tort begins (Epstein)
3. The “reasonable” affirmative duty test will interfere too much w/ liberty. A clear distinction of “no duty” is a much brighter line.
iii. Hard to identify proper Ds (Posner)
1. Who should have a duty? One person? All of the bystanders?
iv. Imposing a duty would deny people a credit for altruism(moral credit). (Posner)
1. Not sure whether person acted out of legal obligation or out of goodness
v. Deters people from being in a position to help (Posner)
1. People at sea would be less inclined to carry equipment to help other boats
2. If we mess up while attempting a rescue, we can be held liable—more likely not to attempt the rescue at all (goes back to general negative duty not to cause harm)
i. Hyman’s Answer to Altruism Concern
i. There are 1.6 lawsuits for non-rescue; but a ton of instances where people have conducted easy and even risky rescues (getting people to rescue is not a problem)
ii. Even if liberty is not an absolute value, we can weigh it against utility
1. The argument, therefore, is that since there is already a lot of rescues, we do not gain much by imposing a duty. Imposing a duty would interfere w/ liberty—so there is not a strong argument for imposing one.
j. Should Legislature Impose Affirmative Duty? There are 2 basic ways to change the law:
i. People who help can be given a little protection
1. Currently, good Samaritans can be liable if they act negligently.
2. Some state statutes try to give a break to the rescuer, but he can still be liable for gross negligence (only offers a little incentive)
a. Doctor probably would not stop to help for fear of liability
ii. Holding people criminally liable if they do not perform the duty
1. Seinfeld example
2. So far, this has not happened; but still an open question
k. Other points
i. Some jxds recognize right to restitution for rescuer who expends resources
ii. Gov’t and gov’t officials cannot be sued on affirmative duty theory
1. Gov’t has no liberty or autonomy; therefore, have to base no duty rule on something else
l. Montgomery v. Nat’l Convoy & Trucking Co.
i. Δs’ trucks were stalled on an icy highway, not their fault, obscured by a hill from the view of oncoming traffic. Δs failed to warn the oncoming traffic (Π) a/b the stalled trucks, and a collision ensued
ii. Ct. determines Δs are liable b/c they owed a duty to others traveling on the highway: it was incumbent on the Ds to take such precautions as would reasonably be calculated to prevent injury.”
1. trucks stalling was not Δ’s fault–not negligent–but they still have the duty to minimize the danger resulting from the act
2. Importantly, this is NOT an exception to the general

old Al liable or impose a duty on him to help Bob.
v. Restatement (Second) of Torts § 324–Duty of One who Takes Charge of Another who is Helpless
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
r. Zelenko
i. Π became ill in Δ’s store. Δ began to take care of Π, then negligently left Π alone in the infirmary for several hours. Δ can be held liable.
s. Does it make sense to prefer lofty indifference to honest but inept efforts to aid?
i. Holding person liable dissuades people from helping
1. There are arguments for letting a Good Samaritan off
ii. Opposing Argument: We have a general duty not to cause harm to others and act reasonably. If we allow an exception, it would complicate tort litigation based on person’s motives. We are willing to put up w/ the cost of dissuading others from helping rather than cause this complication.
t. How do legislatures try to get past this problem?
i. Kansas statute (p. 576): People not negligent for helping unless conduct is wilfull or wanton
ii. Still a problem for good samaritans b/c jury could still find gross negligence; still not completely protected
u. Hypo: Variant on Zelenko
i. Tim is swimming in the ocean and yells for help that he is drowning. Mark is on the beach, hears the yelling, swims out and sees that it is Tim, then swims back to shore. Can Tim sue Mark?
ii. If Mark made the situation worse, then yes
iii. If others were standing on the beach and would have helped had Tim not swam out there, Tim made the situation worse and can be liable
iv. If no one else was on the beach and no one else would have helped, Tim is not liable (in principle)
v. Consequence of est. that Δ has an affirmative duty is not that Π automatically wins. Δ just has to act reasonably, not necessarily that he has to help the Π.
1. Ex: If in Scruggs, ct. determines RR cannot say no to fire truck’s request, and it is not a house but a field that is on fire (well-contained), and there is another fire truck on the way and will be there in 5 minutes. If it is costly to move the train, the cons of moving may be greater than the pros, so maybe RR would not have to move. Δ just has to act reasonably.
2. Ex: Variant on Montgomery. Stalled Ds have a duty to act reasonably toward other drivers on the highway. What if they stall at 10:05 and then Π shows up at 10:05 and 30 seconds? Ds did not have time to act instantly–they were not unreasonable in not warning drivers sooner b/c they did not have time