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Criminal Law
West Virginia University School of Law
Taylor, John E.

Torts Outline
Duty (Question of Law)
Duty of Care
I.       As a general rule everyone owes a duty to act as a reasonable person would under the same or similar circumstances
a.      Two approaches in the book regarding duty
i.      Cardozo and the editors – Duty is relation and is based on an obligation.
ii.      Traynor and Prosser – Duty is a social policy consideration; relationships have nothing to do with imposing a duty.
a.      Note – Andrews in the Palsgraf dissent believes there is no duty element – it is a policy determination made under the proximate cause element

II.    Easy duty Cases
i.      Direct Physical Harm caused by affirmative conduct (misfeasance)

b.      Cases That Expanded Duty
i.      Winchester – a producer of imminently dangerous products had a duty to foreseeable uses of that product
1.      Did away with the privity rule which only allowed the people who directly contract for a product to sue – consumers were barred

ii.      Heaven – An actor owned a duty to any person that was put into a foreseeable danger created by the actor’s affirmative conduct.

iii.      Macpherson – A Δ was liable to 3rd party ∏ if their products posed a foreseeable danger to the consumer ∏, regardless of the fact that they did not directly sell them the product, but an intermediary dealer did.

iv.      Mussivand – A duty of care is owed to foreseeable parties who may be injured by their harmful affirmative conduct\

III.Hard Duty Cases
a.      Affirmative Duties – A duty to act when action would have prevented harm
i.      Special relationship
1.      Examples: Common Carrier/Passengers; Employer/Employee, Landlord/Tenant; Doctor/Patient

ii.      Created the risk – duty to protect or save if created the risk that posses harm

iii.      Being an Active Participant in a dange

                                             ii.      Licensee – must take the land as they find it
a.      (Note – The courts give property owners a lot of leeway with the remaining two categories because property rights are sacred, and they don’t want to burden that right)

2.      They are allowed on the land with the owner’s consent, but only the licensee derives benefit from their presence on the land
a.      Examples: members of own household; social guest, door to door salesmen
3.      The owner is not required to make sure the house is safe
a.      However they must alert licensees of any hidden dangers they know or should know of but the licensee would not know
b.      The owner may be liable for activities he engages in that take place on the property
4.      The owner must reasonably anticipate a person’s presence on the land
5.      However, if the licensee uses or enters a part of the property where does not have permission, he is a trespasser