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

Eaton – torts II – spring 2010 – Prosser, Wade and Schwartz’s Torts. 11th Ed.
Duty of Care

I) Duty of care

Looking at suits brought under negligence (duty, breach, causing harm). Thus far we have been assuming duty (a legal obligation to use reasonable care) and focusing on breach (was the conduct reasonable) and causation (but for and proximate). Here we investigate cases where D claims they have no duty or less of a duty

A) Duty in general
1) Duty – whether someone has a legally enforceable obligation to use reasonable care
(a) General Rule – when committing affirmative acts citizens have a duty to use reasonable care to prevent foreseeable harm to other citizens
B) Affirmative Duty
1) Affirmative Duty – question of when defendant is liable for failing to act
(a) So P is saying: you should have done something to protect me.
(b) Threshold question is “did D have a legal obligation to do something?”
(c) If answer is “no” then there is no duty of care; No duty of care = no requirement to act reasonably. D is not liable period
C) General Rule – There is no Duty to Rescue
1) Hegel v. Langsam
(a) parents bring case against a university for permitting 17 year old to engage in immoral acts
(b) Court ruled that there is no obligation for university to act reasonably
2) Hurley – Docs have no duty to treat patients that are not already their patients
3) Policy reasons
(a) where to draw the line/slippery slope – once one decides an individual is required to act at his own cost for the benefit of another, it is hard to draw a line where on does or does not act. (Charities on TV example)
(b) imposing a duty to act diminishes the moral benefit of having made a sacrifice on the part of the actor – no one deserves a pat on the back for doing what the government requires one to do
(c) libertarian arguement – intrusion of personal autonomy
4) Three Exceptions where Duty to Rescue Applies
(a) Special relationships between P and D
(i) examples
(1) Shopkeeper – shopper (invitor- invitee); Innkeeper and guest; Employee and supervisor
a. Hicks – store has obligation to rescue child from escalator
(ii) Unique Characteristics that overcome libertarian objection
(1) Relationship voluntarily entered by party on whom duty is placed
(2) Person upon whom duty is placed has the expectation of financial gain
(3) Widely shared expectations for one party to keep the other safe
(iii) Duties created by relationships are NOT reciprocal
(b) Instrumentality in control of the D
(i) Creates a duty where the instrumentality caused the injury
(ii) Personal connection to instrumentality can overcome libertarian argument for no duty
(iii) Examples
(1) by driving a car you owe a duty to help after an accident no matter who is at fault
(2) Escalator – even though in Ayres the company did not have anything to do with the boy getting his finger caught, they still had a duty to stop it b/c it was their instrumentality
(iv) Apples to everyone (even trespassers)
(c) Undertaking + detrimental reliance/worsening of condition
(i) Undertaking +
(1) D voluntarily assumed the duty (choice)
(2) D acted affirmatively to help P
(ii) worsening of condition
(1) a railroad has a passenger who is drunk and the people on the railroad decide to help the man off the train. They start to take a man up some stairs but they leave him halfway up the stairs. In this case there was not an affirmative obligation to get him up the stairs until they put him in a more dangerous situation than existed before
(iii) detrimental reliance
(1) Florence v. Goldberg – for two days there is a crossing guard at the shool that the mom saw when walking with kid. The school canceled the crossing guard without telling the parents and kid got hit. It was ruled that the mother had detrimentally relied on the crossing guard and there was a duty to tell the parents about canceling the crossing guard
(iv) Good Samaritan statutes – doesn’t create a duty to rescue but provides a kind of immunity for those who choose to undertake to rescue
(1) Objective – objective: to remove the economic disincentive to rescue
(2) Extent of coverage
a. Should it cover professionals with special skills or everybody
b. Should it be absolute immunity or allow suits in aggravated negligence
i. Majority rule – good Samaritans are protected from simple negligence but are liable for gross negligence
c. Should it extend to cases where there is a pre-existing duty to act
i. Eaton says NO, no good reason to protect those that have a duty
D) Expansion of Affirmative Duties
1) Question of law for the judge trenched in policy
(a) similar to BPL analysis in that the judge makes policy choice weighing possible results if action or inaction is taken.
(b) reflects a shift from narrow and individualistic to expansive, collective, and interdependent view of responsibility and the world
(c) Key Factors
(i) Foreseeability and severity of the underlying risk of harm
(ii) Comparative interests of and relationship b/w the parties
(iii) Societal interest in recognizing duty (societal interest)
(iv) Practicality of preventing harm
2) Additional Duties created in special relationships
(a) duty to report on spouse – spouse has a duty to report on their spouse if have particular knowledge or special reason to know that a particular class of Ps would suffer a particular type of injury (e.g. child sex abuse)
(i) J.S. and M.S. v. RTH – Lady is sued for her husband sexually molesting two neighbors
(ii) Reasons for liability
(1) Foreseeablility – Court rules that wives can often foresee sexual abuse of this kind
(2) Societal interest – statutes suggest that there is a great societal interest in preventing sexual abuse
(3) Practicality – wife probably could have prevented abuse
(iii) Problems with liability
(1) Possi

ent victims who will not get paid
b. not all parties have the choice of insurance/can afford it indivdidually
(b) Cases
(i) Testbank – Ships collided on the Mississippi and this ended up releasing pcp so 400 square miles of the gulf had to be closed for months. A group of people who had to suspend their operations sued the shipping company for economic loss
(1) Only people allowed past summary judgment were fisherman who were determined to have a proprietary interest in uncaught fish
(2) Majorities justification – we have to provide a bright line cutoff for liability somewhere
(3) Minority rule is we should evaluate on a case by case basis using the traditional standards of cause, duty, and foreseeability
(ii) Robbins dry dock
(1) Plaintiff denied recovery for economic loss where loss resulted from physical damage to property in which the plaintiff had no proprietary interest
3) Minority Rule: recovery for Professional Liability – some situations where the courts will allow recovery with pure economic loss where there is no business relationship if injury is extremely foreseeable to tortfeasor
(a) Accountants – an accountant may be liable to the foreseeable people for who information was directed directly or indirectly
(b) Engineers – engineering firm about structural integrity of a building. Prepared for seller but relied on by buyer. Even though there is not a engineer – client relationship the plaintiff is allowed to sue because the economic loss was foreseeable
B) Emotional Distress
1) Why allow recovery for emotional distress resulting from D’s negligent conduct? i.e. when D has done something unreasonable but the only damage to P is emotional
(a) Deterrence
(i) At some point paying more money may not cause more deterrence
(b) corrective justice –
(i) the harm is real, and there’s a wrong, the victim should be compensated
(c) human vindication:
(i) a person is more than the sum of his/her economic parts
(d) feminist critique:
(i) if we limit recovery to physical injury and economic losses (not allowing recovery for emotional distress), white males will recover a grater monetary value for their loss than others would
(e) the law has protected emotional interests for a long time: assault is really about protecting against fear (I de S case where woodsman tries to hit woman with axe)