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University of Pennsylvania School of Law
Baker, Tom

BAKER: What we have to know about DUTY FOR THE EXAM
1. The shape of the duty doctrine
o The rule/exception framework
o Most significant exception-no duty to act affirmatively
o Exception to the exceptions
2. Rule/exception/exception framework
o Pure economic loss
a. Rule-No duty
b. Exceptions
3. The California Factors: an alternative approach
o Rowland v. Christian
o Tarasoff
4. Understand and know the cases leading up to MacPherson v. Buick

The Basics:
· Judge decides duty or no duty. Duty is thus a tool used to expand/contract judicial discretion. If a judge says “no duty,” then the action will not get to the jury.
· Expanding duty therefore decreases judicial discretion, in that an expansion of duty will result in more getting to the jury.
· General Standard: behave with the degree of care that a reasonable person would exercise under the circumstances.
· Misfeasance (affirmative act that harms P) vs. Nonfeasance (a passive failure to take action). General duty to refrain from misfeasance but not from nonfeasance (subject to exceptions).
1-Winterbottom v. Wright (1842-Britain)
FACTS: Wright was a carriage builder. He entered into K with Postmaster General to provide coaches fit for delivering mail. Postmaster hired drivers from another contracting company. Winterbottom was an employee of the company from which the drivers were hired. Winterbottom was injured when a wheel of the coach collapsed. Sued Wright on the theory that Wright owed duty of care to drivers to ensure reasonable soundness of coaches.
HOLDING: Wright owed no duty to Winterbottom. Finding duty in this case would “invite an infinity of actions” (floodgates arg.).
RULE: Duty is based on privity of contract. Manufacturer only has duty to purchaser, not to any 3rd party with whom purchaser contracts.
2-Thomas v. Winchester (1852-NY)
FACTS: Manufacturer mislabeled bottle of poison as medicine, sold to distributer, which sold to Thomas. Thomas ingested poison as if it were medicine, became ill.
HOLDING: Case is distinguishable from Winterbottom, in that “death or great bodily harm…was the natural and almost inevitable consequence of the sale of [poison] by means of the false label…No such imminent danger existed in Winterbottom.”
RULE: 3 factors here: 1) foreseeable harm, 2) imminent dangerousness of product, 3) drug manufacturers typically sell through intermediaries.
When product is imminently dangerous, manufacturer has a duty to exercise caution arising from this potential danger. The duty extends to 3rd parties.
3-Loop v. Litchfield(1870-NY)
FACTS: D manufactured a machine that included a cast iron wheel. Wheel was manufactured missing a piece of the rim. D repaired the wheel, then sold machine to Collister. Several years later, Collister leased the machine to Loop, who was fatally injured when the wheel burst at the point of the repair.
HOLDING: No duty under Winterbottom privity rule.
4-Losee v. Clute (1873-NY)
FACTS: D manufactured a steam boiler for use in a paper mill. Paper mill owner tested and accepted the boiler, which operated without incident for 3 months, then exploded, causing damage to Losee’s (a 3rd party-neighbor of mill) property (property damage only).
HOLDING: Citing Winterbottom privity rule, and the fact that D exercised no control over installation and operation of boiler, Court found manufacturer owed no duty of care to P.
5-Devlin v. Smith (1882-NY)
FACTS: P, a painter, was killed when scaffolding collapsed due to D’s carelessness in erecting scaffolding. The dead painter was a 3rd party (i.e. not an employee of D).
HOLDING: Court followed Thomas in favor of duty, reasoning that a poorly constructed scaffolding is imminently dangerous to human life, and D therefore owed a duty of care to 3rd parties who might use the scaffolding.
6-Heaven v. Pender- (1883-Britain): the British extreme!!
RULE: An unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person “of ordinary sense” would recognize that careless conduct on his part would cause “danger of injury to the person or property of the other.” Today recognized as reasonable foreseeability.
Torgesen v. Schultz (1908-NY)
FACTS: P (a 3rd party) lost an eye when bottle of aerated water exploded.
HOLDING: Bottle of aerated water is an inherently (note: inherent vs. imminent) dangerous instrument. Court follows Thomas in finding that manufacturer owed duty of care to P.
7-Statler v. George A. Ray Mfg. Co. (1909-NY)
FACTS: steam driven coffee urn exploded, injured P (3rd party).
RULE: Inherently dangerous instrument. Court finds manufacturer owes duty of care to P.
FACTS: D manufactured a car-sold car to retail dealer. Dealer sold car to P. One of the wheels was defective and collapsed while P was driving, causing an accident that injured P. The wheel was made by another manufacturer (not Buick), but there was evidence that suggested the wheel’s defects could have been discovered upon inspection.
REASONING: Cardozo’s moves
1. Starts (note: Thomas is not the oldest case-rhetorical move) with Thomas-follows in favor of duty.
2. Distinguishes Loop based on imminent danger and confines Losee to its special facts.
3. Follows Devlin/Statler in favor of duty.
4. Suggests that Thomas, Devlin, Statler form a series characterized by a liberal spirit.
5. Winterbottom? What to do with a case whose acts are so similar? Cardozo says: Times have changed. “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day.”
6. Cites Heaven v. Pender for contrast (I will eliminate the privity rule, but I’m not as extreme as the Brits, who have a general duty of ordinary care!).
HOLDING/RULE: A Plaintiff can recover for negligence even if he is not in privity with the defendant. Right to recovery arises out of tort law, not from contractual relationship with the manufacturer. It is not necessary for Plaintiff to show that the product is inherently/imminently dangerous. “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.”
1. After MacPherson, manufacturers owe a duty of ordinary care, at least with regard to bodily injury. However, MacPherson did not extend to property damage (the principle has since been extended to property damage by most courts).
2. MacPherson does not go as far as Heaven v. Pender in embracing an unqualified general duty of care.
Mussivand v. David (Ohio-1989)
FACTS: Defendant, a doctor, had sexual relations with the Plaintiff’s (also a doctor) wife. The Defendant claims that the Plaintiff infected his wife with a Sexually Transmitted Disease, and that wife in turn infected him. Plaintiff argues that Defendant owed him a duty of care, even though Defendant was not Plaintiff’s sexual partner (no privity). Defendant argued that he owed no duty of care to the Plaintiff.
ISSUE: What duty, if any, does a person infected with venereal disease owe to the spouse of his paramour?
REASONING: There is no formula for ascertaining whether a duty exists. But “it ha

o have convulsions on the floor.
· When the Plaintiff regained consciousness, he was lying on the floor. He claims no Taco Bell employee called for medical assistance or helped him in any way. Taco Bell claims that while Plaintiff was convulsing on the ground, an employee walked around the counter, waited for convulsions to end, and asked him if he was okay. Employee claims Plaintiff said he fine, upon which employee returned to her post behind the counter.
· Moments after Plaintiff stood up, he fell again, this time falling forward lacerating his chin, knocking out 4 teeth and cracking a vertebra in his neck. When Plaintiff regained consciousness, he was choking on loose teeth and blood.
· Plaintiff claims Taco Bell had a duty to assist him and that it breached that duty by failing to provide assistance to him.
· Taco Bell argues that it had no duty because it was not responsible for the instrumentality that led to Plaintiff’s injury.
ISSUE: Did Taco Bell owe Plaintiff a duty of care?
HOLDING: Taco Bell owed Plaintiff a duty of care.
To determine whether a duty exists, court must balance 3 factors: 1) the relationship between the parties, 2) the reasonable foreseeability of the harm to the person injured, 3) public policy concerns.
o General rule is that an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance. However, there are both common law and statutory exceptions.
o R2d§314 Special relations giving rise to a duty to aid or protect.
o L.S. Ayers precedent: Court held that Defendant owed a duty to boy because 1) the boy was an invitee and 2) the injury resulted from the use of a instrumentality provided by Defendant.
o Court looks to precedent, holds that State Supreme Court did not mean to limit duty to aid to situations where Plaintiff was both invitee and Defendant’s instrumentality caused injury.
o There is support for this interpretation in §314 and in the section’s illustrations. Indicates that there may be a duty even if the illness/injury was not caused by Defendant’s instrumentality.
o Finally, public policy suggests Taco Bell had a duty to provide reasonable care in this situation. “Store owner is deriving economic benefit from customers, therefore they should assume an affirmative duty to help customers who become ill as a cost of doing business.”
o Duty that arises is only to “exercise reasonable care under the circumstances.” Employee would not be required to provide the type of first aid that a doctor might provide.
o Taco Bell already has a duty to determine whether or not a customer’s injury was caused by their instrumentality. Consequently the court is not placing a duty on businesses that they should not have already assumed.
RULE- P was invitee, and is therefore owed a duty by the business. (Dangerous instrumentality not necessary.)