Negligence
1. Duty- legal issue for the judge to determine. A question of whether the gov. through the legal system imposes an obligation on a D to exercise reas. care (or some more exacting standard) under the circ’s. Duty is the legal conclusion that one person is obligated to act w/ some degree of care to avoid risking an invasion of another person’s interest. The obligation is a duty and the interest protected by the obligation is a right. Policy- from D’s perspective, duty is a restriction on freedom of action; from P’s perspective, duty is protection of an interest against invasive conduct. General idea of duty: why should one individual be able to act in a way that causes another a loss and not be required to compensate another for the damages he caused? General rule- everyone has a duty to avoid invading another’s right. The exception to the general rule- no duty to prevent harm not of the actor’s making; no duty to act to prevent a foreseeable risk of harm; no duty to rescue. There are exceptions to attempt to offset unjust results. Limitations on the general rule- situations where courts fear that the potential liability is out of proportion to the blame. Emotional harm and economic loss are examples of these limitations.
a. Source, Scope, Interest:
i. Source- why is D under a duty to plaintiff? Sources are the general rule (act + foreseeable risk of harm = a duty not to invade others’ interests), assumption of duty, relationship b/w P and D, D’s relationship to a 3rd party, and statutory duties (such as wrongful death statutes).
ii. Scope- what was D required to do to avoid breaching the duty owed to P? Often reasonable care under the circumstances (the general rule).
iii. Interest- Did D owe a duty to take care not to invade P’s interest (rights)?
b. Misfeasance- Duties arising from the creation of risk- D did something/acted and foreseeable harm was present.
i. Wilson v. Boise City- “since the city has assumed the control and direction of the stream (an act), it cannot turn its water loose upon other property owners and flood and damage them w/out also assuming a responsibility for such damages caused by its lack of proper care for controlling the stream.” The canal was not big enough to hold the water at times of high water.
ii. Keim v. Gilmore & Pitts. R.R.- Ct.- “it was the duty of the train operators to notify station employees of the extended jackarm and they had a duty to maintain a lookout to protect people. The railroad company set the danger in motion; it was the active agent in carrying an unusual danger over the road.”
iii. McKinley v. Fanning- Majority- D caused ice to go onto a public sidewalk as a result of installation of a faulty awning, so owed a duty to “pedestrians.” Dissent (Shepard)- P was a lessee and knew about the hazard, therefore, D owed her no duty.
iv. Gibson v. Hardy- case where slash piler dude bulldozed P’s neatly stacked salvage logs. Source of duty- general rule (not harm others). Scope- reas. care under circ’s. Dude could have gone 15 min. to ask permission to bulldoze that area, could have bulldozed other areas, saw that the logs were cut and neatly stacked, etc. His actions were found to be unreas. under the circ’s.
v. Turpen v. Granieri- alcohol poisoning at a house w/ party rep. case. No duty to refuse to rent to college students or do more intensive screening. Act (renting the house to the students) did not have a foreseeable risk of harm: that renting a house to those people would cause a 3rd party to die while participating in a legal activity.
c. Nonfeasance (an exception to foreseeability)- Foreseeability is a necessary condition, but not sufficient, to establish a duty. There must also be an act, usually.
i. Fagundes v. State- decedent pilot worked for independent contractor helicopter company hired by the gov. to fly gov. workers through the wilderness to count game. Even though there was foreseeability (obviously a crash could occur), the state owed no duty to decedent to take action (nonfeasance) because “they didn’t act to create the risk.” Prof.- “Although there was action in Turpen and Fagundes, it was more remote than the other (misfeasance) cases because there was action in the middle and those actions were more directly involved in the creation of the risk. Saying that D ‘did not create a risk’ is the choice of the court when in reality it is just a difference in degree.” Bottom line- there seems to always be an action, it is just a matter of degree…seems like a causation thing. Even though the gov. acted in a broad sense, nothing it did caused the accident even though it was in the chain. “No act” = a legal conclusion by the ct.
A) State (lessee)> Heli. co.(lessor)>Pilot. The “middleman” was the heli co. and was more closely related to the risk than
.”
C) D’s relationship to 3rd party
· Tarasoff v. Regents of the U. of California- General rule: one person owes no duty to control the conduct of another or to warn those endangered by such conduct. Exception: Special relationship w/ to person whose conduct needs to be controlled or a relationship to the foreseeable victim of that conduct. In that case, D had a duty of care to P b/c of his special relationship w/ D as his therapist. “Such a relationship may support affirmative duties for the benefit of 3rd persons.” Example- a doctor must warn a patient if prescribed medication will make driving a car dangerous to others. Another example- doctors must warn a patient’s family of a contagious disease. Duty in this case- to use reasonable care to protect the foreseeable victim of that danger.
· Alegria v. Payonk- ct. held that alcohol venders could be liable to third parties and could be the proximate cause of an intoxicated patron injuring a member of the public, which overruled previous precedent and statutes. The “bar served alcohol to an intoxicated minor who then killed P’s wife” case. Rule- Foreseeability not too remote to hold vendors liable for 3rd party injuries. Pretty much “dram-shop” liability and the Legislature passed a law that only put liability on bars that sold to underage people or to people obviously intoxicated.
· Negligent entrustment/supervision- characterizes the duty of care to be applied in evaluating an alleged tort-feasor’s conduct. The crucial element is the legal right to control the thing entrusted which gives rise to a duty in negligent entrustment. Foreseeability + control over the risk (the “something more”).
· Kinney v. Smith-negligent entrustment when a wife let her drunk and unlicensed husband drive her vehicle.
· Fuller v. Studer-not negligent supervision when a parent does not know that a child possesses a propensity for doing things like climbing on a snowmobile.
