(C3): Duty - Physical Injuries

Affirmative Obligations to Act

1. Duty to Warn / Duty to Rescue
a. Harper v. Herman Social host/boat captain owes no duty to guest injured when diving off.
b. Farwell v. Keaton Dude left his friend in the back of a car.
c. Review: When determining if an affirmative duty to warn exists, courts consider:
i. If a special relationship existed
ii. Whether defendant voluntarily undertook rescue
iii. Whether defendants conduct made the situation worse
Special Relationships

Normal Opportunities for Protection

A special relationship arises when:

(1) common carrier,
(2) innkeeper/guest,
(3) possessors of public land,
(4) persons who had custody of other person under
circumstances where other person is deprived
of normal opportunities of self-protection.

A person is deprived of normal opportunities for self-protection

when:
(1) Plaintiff is particularly vulnerable and dependent on defendant,
who has considerable power over plaintiff's welfare.
(2) There is some existing or potential economic advantage to
defendant
(3) Plaintiff has some expectation of protection.

Misfeasance in After Beginning Rescue

If you are under no duty to do so and you take charge of a helpless other, you can be held liable for:
a) failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or
b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor
took charge of him.
NOTE: Third Restatement requires an actor to exercise reasonable care in discontinuing aid for someone who reasonably
appears to be in immediate peril.

2. Duty to Third Party - Negligent Misrepresentation

a. Randi W. v. Muroc Joint Unified School District Schools that wrote positive letters of recommendation
for teacher with history of sexual abuse owed duty to student later sexually assaulted by teacher
Negligence in Giving False Information (Restatement 311)
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by
the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should reasonably expect to be put in peril by the action taken
(2) Such negligence may consist of failure to exercise reasonable care:
(a) in ascertaining the accuracy of information, or
(b) in the manner in which it is communicated.
Court Departs from General Principal of Duty When:
What are the seven prongs when the court departs from the general principle of duty?
(1) Foreseeability (most important)
(2) Degree of Certainty of Injury
(3) Closeness of connection between injury and conduct
(4) Moral Blame
(5) Policy to Prevent Future Harm
(6) Extent of Burden
(7) Availability of insurance to prevent risk

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3. Duty to Third Party Duty to Warn

a. Tarasoff v. Regents of the University of California Therapist owed duty to warn patients ex-girlfriend
that patient wanted to kill her. Special relationship establishes duty to third party.
Special Relationships (Second Restatement 315)
Duty of care may arise from either
(1) A special relation [] between the actor and the third person which imposes a duty upon the actor to control the third
persons conduct, or
(2) A special relation [] between the actor and the other which gives to the other a right of protection.

Foreseeability
Tarasoff uses the same seven considerations as Randi W.
Foreseeability is the most important consideration.
Defendants owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks

which make the conduct unreasonably dangerous.

This duty does not include controlling the conduct of another person or warning of such conduct unless the defendant
bears a special relationship to the dangerous person or potential victim

Therapist Duty of Care

Therapists owe a duty of reasonable care to protect their parties from their patients when:
(1) Therapists determine that their patients pose a danger, or
(2) Pursuant to the standards of their profession, should have so determined

4. Role of Statutes in Creating Duty

a. Uhr v. East Greenbush Central School District - Law required school screen for scoliosis. By the time
plaintiffs scoliosis was discovered, progressed to needing surgery. Sued for not enforcing statute, court
found the statute created no duty (private right of action).
Private Rights of Action
Express
An expressed private right of action is expressly authorized by the
statute.

Implied
An implied private right of action when the statute is silent
but a private right of action may be fairly applied.

Determining if Private Right of Action Can be Fairly Applied:

In determining if private right of action exists, the court asks:
1) Whether the plaintiff is one of the class for whose particular benefit the statute was enacted;
2) Whether recognition of a private right of action would promote the legislative purpose; and
a) What did the legislature seek to accomplish?
b) Would a private right of action promote that objective?
3) Whether creation of such a right would be consistent with the legislative scheme.
NOTE: All three must be fulfilled.

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Policy Bases for Invoking No Duty

1. Policy Reasons for No Duty
a. Strauss v. Belle Realty Co. Man falls down stairs during power blackout in apartment complex. Court
finds no duty to limit liability of public utilities because of concerns that too many cases would be similar
and be a crushing blow to the company.
b. Reynolds v. Hicks Social hosts (wedding party) owe no liability to third party injured by minor who
drank at their wedding.

Social Hosts, Minors and Alcohol

Hansen Court
Marcum Court
Templeton Court

A minor who is injured as a result of alcohol intoxication has a cause of action against the social
host who supplied the alcohol.
Social hosts have a duty to not knowingly and intentionally serve minor alcohol.
Social hosts do not owe a duty of care when a minor is injured as a result of alcohol intoxication
when social hosts observe the minor drinking but the minor brought his own alcohol.

Dram Shop Acts

Most states have Dram Shop Acts impose liability on commercial enterprises for harm resulting from intoxication when they serve
a person to the point of intoxication or serve an intoxicated person. There is considerable variation among these statutes.
EXAMPLE: GA Statute requires knowledge that the intoxicated party is about to drive. So in Delta Airlines v Townsend, the
airline was not liable for injuries to a third party after serving passenger until he was intoxicated because the airline knew the
passenger would leave the plane but did not know how he would get home (eg. drive, take a taxi, be picked up).

2. Negligent Entrustment
a. Vince v. Wilson Driver of car causes accident. Grandmother who funded purchase of car and seller of
car and company president owe duty to person injured in accident because they provided the car to
someone who they knew to be an incompetent driver.
Negligent Entrustment
Negligent Entrustment - Liability arises out of the combined negligence of both the negligence in entrusting the chattel to an
incompetent driver and of the other in its operation.
Restatement: One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has
reason to know to be likely because of his youth, inexperience, or otherwise use it in a manner involving unreasonable risk of
physical harm to himself and others who the supplier should expect to share in or be endangered by its use, is subject to liability for
physical harm resulting to them. Applies to anyone who supplies a chattel for the use of another.
Some courts limit the liability in negligent entrustment to situations where the defendant is the owner or has the right to control
the instrumentality entrusted. This is not consistent with the Restatement rule.
Cases which restrict the rule to situations where the defendant is the owner of or has right to control have been severely
criticized because it is the negligence in entrusting which creates the unreasonable risk; and this is none the less when
the goods are conveyed.

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The Duties of Landowners and Occupiers

1. Premises Liability
a. Carter v. Kinney Defendants hosted Bible study at home. Not liable to injury to social guest, who was
licensee.
Statuses of Visitors
Invitees

Licensees

Trespassers

WHO: All entrants to land who believe possessor has

interest in the visit such that the visitor has reason to
believe that the premises have been made safe to receive
him.

WHO: All entrants to land who

enter premises with permission.
Social guests are included.

WHO: All entrants to land

without permission to enter

DUTY: Duty to exercise reasonable care to protect them

against known dangers and dangers that would be
revealed by inspection

DUTY: Duty to make safe dangers

of which possessor is aware

DUTY: No duty of care owed,

except to not intentionally
harm.*

Licensees and Invitees

A licensee becomes an invitee when:
(1) Possessor invites with expectation of a material benefit or
(2) Extends an invitation to the public general or undefined portion of public.**

*Public Invitees
Majority Rule (Restatement 332)

Minority Rule

Extends invitee status to a person who is

invited to enter or remain on land as a
member of the public for a purpose for
which the land is held open to the public.

The imposition of additional expense and effort by the landowner [] must be

directly tied to the owners commercial business interests. It is the owners desire to
foster a commercial advantage by inviting persons to visit the premises that justifies
imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain
is a sort of quid pro quo for the higher duty of care owed to invitees.
The public invitee on church grounds, for example, cannot hold the church liable
because there is no business interest.

Liability for Invitees (Restatement 342)

An occupier is subject to liability injuries caused by conditions of the premises to invitees when the occupier:
(a) Knows or by the exercise of reasonable care would discover the condition and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger

*Trespassers & Exceptions to No Duty (Restatement 333 - 338)

General duty is not to willfully or wantonly harm trespassers. A possessor of land is not liable to trespassers for physical harm
caused by his failure to exercise reasonable care
(a) to put the land in a condition reasonably safe for their reception, or
(b) to carry on his activities so as not to endanger them.
Exceptions:
(a) where the possessor knows that persons constantly intrude upon a limited area of the land and many encounter a hidden
danger, or
(b) fails to exercise reasonable care for the safety of a known trespasser.

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Children Trespassers & Exceptions to No Duty (attractive nuisance) (Restatement 339)
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the
land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely
to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in
coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared
with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children

b. Heins v. Webster County Plaintiff visited defendants hospital and fell. Court abolished categories of
licensee and invitee but kept trespass category.
Hines Court Rule
Owners and occupiers have a duty to exercise reasonable care in the maintenance of their premises for the protection of all
lawful visitors. (This abolishes the classes of invitee and licensee)

Factors to consider for exercise of reasonable care are:

Factors considered should be:
(1) Foreseeability or possibility of harm
(2) Purpose entrant entered premises
(3) Time, manner and circumstances under which entrant entered premises
(4) Use to which the premises were put or are expected to be put
(5) Reasonableness of inspection, repair or warning
(6) The opportunity and ease of repair or correction or giving of the warning
(7) the burden on land occupiers and/or community in terms of inconvenience or cost in providing adequate protection

c. Posecai v. Wal---Mart Stores, Inc. Plaintiff robbed at gunpoint in Sams Club parking lot. Court found
store owed no duty to protect customer (invitee) from crime when taking burden on defendant into
account.
Four Approaches to Duty of Landowners to Protect From Third Party Criminal Acts
Specific Harm Rule

Somewhat outdated, viewed as too restrictive

No duty unless business owner aware of specific,
imminent harm

Prior Similar Incidents Test

Totality of Circumstances Test

Foreseeability established through considering prior

similar incidents, and other relevant factors, such as
nature, condition, and location of land
Takes in additional factors like nature, condition and
location of land into account
Focuses on level of crime in the area and more willing
to see property crime or minor offenses as precursor to
more violent crimes
Places a greater duty on businesses to foresee crimes
and is criticized as too broad of a standard

Can Result in Arbitrary Results

Foreseeability is established by evidence of previous
crimes on or near the premises.
Considers nature, extent, recency, frequency &
similarity of previous crimes
Balancing Test

Balances the foreseeability of the harm against burden

of imposing a duty on business owners.
Addresses the interests of both business proprietors
and their customers by balancing the foreseeability of
harm against the burden of imposing a duty to protect
against criminal acts of third persons.
Most important factor for foreseeability is existence,
frequency and similarity of prior incidents of crime on
premises but location, nature and condition of property
should also be taken into account.

Note:

(C3): Duty - Physical Injuries

Courts talk about foreseeability in duty in general objective terms. If we talk about what defendant OUGHT to have done,
talking about duty. We talk about it in terms. If we're asking if what the defendant did made sense, it's a mixed duty/breach. Do
they have to do anything(duty) and what do they have to do (breach)?

Intrafamily Duties
Broadbent v. Broadbent

Governmental Entities