1. Duty
a. Duty: Brief Definition
i. Duty is best defined as “The Zone of Danger”
– It’s the circle that encompasses all the people who could get hurt by your actions.
– ASK: Was it foreseeable that the Plaintiff might be injured by the Defendant’s negligence?
b. Duty to Rescue – The Obligation To Help Other People
GENERALLY: There is no Duty to Rescue!
i. Yania v. Bigan – (Man falls into pit, drowns while other watch)
– There’s no duty to rescue others, particularly when it risks your own life
EXCEPTIONS:
ii. Farwell v. Keaton – (2 buddies out on the town, one gets seriously hurt and dies)
– There’s a Special Relationship between friends on a common venture. If one of them gets in trouble, he can reasonably expect the other to help him.
1. OTHER SPECIAL RELATIONSHIPS (Direction of arrow reflect “Duty To”)
i. Doctor à Patient
ii. Teacher à Student
iii. Babysitter à Child
iv. Buddy ßà Buddy
– It’s a common venture Doctrine.
– Once you start to rescue, there’s a duty to finish – BUT, that discourages people from starting to help. . . so courts will look for another duty to rely on.
iii. Soldano v. O’Daniels – (Guy runs across street to call 911, they won’t let him use the phone)
– If you block someone from fulfilling their duty to rescue, you are responsible for the consequences! The No-Big-Deal Exception.
– You never have to go out of your way to help someone… but when it’s minimal effort on your part, you’d be a real jerk not to.
1. The problem is proving that case. Here: they would have to prove that if the bartender had allowed the Good Samaritan to use the phone, the guy wouldn’t have gotten shot.
2. FACTORS TO DEMONSTRATE:
1. Harm to P was imminently foreseeable
2. Certainty of P’s harm was indisputable
3. There’s a close connection between D’s conduct and P’s injury
c. Privity – Suits by 3rd Parties. Generally, the 3rd Party LACKS privity
Privity: the connection between two parties, each having a legally recognized interest in the subject matter
i. Moch v. Rensselaer Water Co. – (No H20, bldg burns down. . . City contracted with H20 Co.)
– The citizen whose building burned down lacks privity in this situation
– Citizen can’t sure utility company
– Public policy discourages individual lawsuits against utility companies! If they allowed it there would be far too many lawsuits each time the water went out, all with varying fact patterns and varying levels of damage.
– Sometimes: the water levels get low, and you just have to deal with it.
ii. Strauss v. Belle Realty – (Blackout: Lights out, Tenant falls down stairs in common area)
– Very similar case to Moch v. Rensselaer Water. Public policy discourages lawsuits against the utility companies.
– Think about the NY blackouts. BUT: Utility companies aren’t 100% immune from lawsuit. Only in the sense of privity // zone of danger…
iii. Lucas v. Hamm – (Attorney botched will (law of perpetuities), heirs sue him for damages)
– The Attorney was working for the testator,
but the testator’s heirs were within the
foreseeable “Zone of Danger”. The
attorney’s actions clearly affected the
heirs of the will.
d. The Duty to Control Others: How much responsibility does
the Plaintiff have for the actions of a 3rd Party?
i. Tarasoff v. Regents of the Univ. of CA – (patient tells Dr. that he plans to kill someone)
– Patient tells Dr. that he plans to kill a specific woman
– Doctor has a duty to warn the person the patient intends to harm!
1. The doctor (and the insurance company) which rather deal with a breach of privilege than responsibility for the injury or death of a 3rd Party.
– What if the patient says he wants to hurt someone, but isn’t specific?
1. The Dr. can’t go out and warn the world.
2. Dr. must use the judgment of a reasonable Doctor in the circumstances to determine what the Zone of Danger is.
ii. Vince v. Wilson – (Grandma buys a car for her alcoholic, drug-dealing grandson)
– Negligent Entrustment: the act of leaving something dangerous with a person who D knows is likely to use it in a risky manner.
– Grandma knew grandson was a drug user, so it was wrong to give him the car
– Why not the dealership?
1. If the Court uses not having a license as the measure of a being a bad driver, then it may also have to recognize that having a license is a good driver – which is a very dangerous standard. (Chiropractor footnote…)
e. Negligent Infliction of Emotional Distress – Use this only if you have zero other options
Parasitic Injury – accompanies physical injury
Non-parasitic injury – does not accompany physical injury
MAJORITY: Courts prefer parasitic injuries. It’s easier to demonstrate, easier to verify.
i. Quill v. TWA – (plane nose dives and rights at last second – man suffers psychic damages)
– Parasitic injury
– His ‘psychic damages’ manifested themselves as increased pulse, sweating, nausea – not enough to really constitute physical injury, but plaintiff was stretching to try to make a case (no precedent for non-parasitic injury)
– The court held under the circumstances, plaintiff’s sweaty palms, elevated blood pressure, and other signs of distress provided sufficient physical symptoms to warrant the recognition of his claim. – LEXISNEXIS.
– NEW RULE: When it is not only clear, but REASONABLE & FORESEEABLE that P would have emotional damages, the court will accept non-parasitic injury.
1. If P had broken his arm, emotional damages would be more clear. . . even though that doesn’t make a lick of sense.
ii. Potter v. Firestone Tire – (Company burns rubber – P’s concerned about getting cancer)
– NEW RULE: Emotional distress can be non-parasitic, because:
i. Doing otherwise invites fraudulent claims of negligent infliction of emotional distress, just b/c P suffered physical injury.
ii. Doing otherwise denies Plaintiffs who only suffer psychic injuries the chance to get damages.
iii. Going forward : It’s a jury question, even if non-parasitic.
1. It must be foreseeable that Plaintiff is in the Zone of Danger.
2. Plaintiff must reasonably believe that defendant’s actions cause the Plaintiff’s fear, emotional damages
– HERE: Defendants were smokers. That plays a big part in the jury’s role of deciding whether they had a real fear of cancer.
iii. Thing v. La Chusa – (Mom hears that son was hit by car, claims neg. inf. of emot. distress)
– NEW THREE PART TEST: — specific to
ty (Man falls onto tracks, conductor can’t stop – widow sues)
– Conductor had just a few seconds to react. If he doesn’t stop, he kills the man on the tracks. If he stops the train suddenly, there’s a good chance that everyone on board is injured.
The Emergency Doctrine: Reasonableness is evaluated in light of the emergency.
BUT: Tortheimer says that this doctrine is unnecessary. After all, the “reasonable person in the circumstances” test works just as well. The circumstances include the emergency situation, so . . .
· Vaughn v. Menlove – (farmer stacked his Hay so that it spontaneously combusted)
– Standard of care is that of a reasonable person – it is an objective standard.
· Fredericks v. Castora – (truck driver with 20 years’ experience gets into an accident)
– Experience doing something (tenure or skill level) doesn’t matter.
– A bad driver is held to the standard of a reasonable driver… A good driver is held to the standard of a reasonable driver…
b. Standard of Utmost Care (Common Carriers)
· Widmeyer v. Southeast Skyways – (plane crashes, and the passenger’s widow sues)
– Common carriers owe a greater standard of care to their passengers, because the passengers are at their complete and total mercy.
1. Common carriers include: passenger planes, taxicabs, buses, trains… really, any mode of conveyance for passengers.
c. Standard for people with disabilities
· Roberts v. State of Louisiana (blind man crosses lobby without cane, knocks down old man)
– A reasonable (disabled) person in the circumstances – the disability is one of the circumstances that must be taken under consideration.
– Thus: a reasonable blind person, deaf person, etc.
– Here, a blind person would normally walk across an area that they are very familiar with without using their cane. So it was okay for the defendant.
d. Standard for children
· GENERALLY: the standard used for a child is based on the facts and circumstances. Courts used to use an age scale (1-4, 5-8, 9-12, etc) but that’s not appropriate because one 9 year-old is much different from the next.
– Thus: the circumstance considered is what the individual child knows & understands.
· Robinson v. Lindsay – (One kid runs down another kid with a snowmobile… P loses finger)
– When dealing with inherently dangerous activities, children are held to the same standard as adults: the victim doesn’t care if the snowmobile is driven by a child or by an adult, the injury is the same.
– Inherently Dangerous Activity: mechanized vehicles, potato guns, guns/bombs
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