Duty for Action

General Rule

Duty to act with due care

To protect foreseeable victims

From Foreseeable Injuries

Land Ownership (Premises Liability)

Cases of Potentially Open Ended Liability:

-Nonphysical Harms such as Emotional Distress

-Economic Loss

Utilities

-Open ended liability

-Crushing Liability

No duty w/out an exception

1) Special relationship to victim

2) Special relationship to injurer

3) Creation of risk

4)Undertaking

5)Statute

You owe a duty of due care to act to protect foreseeable victims from foreseeable risk

You owe foreseeable victims a duty of due care to not act negligently.

If it exists a person is only required to consider foreseeable risks of conduct.

If injury is not foreseeable there is no duty.

Protection from crushing liability.

Liability should be proportionate to the harm

Duty of due care to act to prevent harm from others from gaining access to dangerous chattels.

A person who supplies a chattel to another when he knows or should know that because of youth, inexperience, or other reasons (e.g. alcoholism) that there is a foreseeable risk.

The person providing the chattel is liable for resulting physical harm.

Knowledge of the irresponsibility of the person operating the chattel is the key factor.

Can be seen as a an act or an omission (Special Relationship to Injurer)

No duty to act even if it is possible to prevent harm with little to no risk to one's self.

As long as none of the exceptions apply:

Special Relationship to Victim

Special Relationship to Injurer

Voluntary Undertaking

Creation of Risk

Statutorily Imposed Duty

Special relationship to victim

Special relationship to injurer

Creation of risk

Voluntarily undertaking to provide assistance

Statutorily Imposed Duty

Parent/Child

Master/Servant (Respondeat Superior)

Custodian

Physician/Patient (Balanced by rights of patient)

Host/Guest (Third Party Claims for Alcohol)

Possibly Negligent Entrustment

Leaving the victim worse-off than you found him

Discontinuing Aid

Simply an instance of action/misfeasance (negligence)

Promises and Nonfeasance (Detrimental Reliance)

Rescuers (Can be protected by Good Samaritan Statutes which reduce the standard of care when they undertake to provide assistance with no duty to act)

Wrongful Actions--gives rise to a duty

Innocent Actions--J/S over whether it gives rise to a duty

Uhr Test

-Whether the Plaintiff is one of the class for whose particular benefit the statute was enacted

-Whether recognition of a private right of action would promote the legislative purpose

-Whether creation of such a right would be consistent with the legislative scheme

Alcohol (Can depend on age)

Social Hosts can have liability (or have liability statutorily removed) to 1st parties (those served) and 3rd parties (those hurt by those they serve)

Dram Shop Rules

Apply's a duty but J/S over whether 3rd parties can recover

Parent/Child

Master/Servant

Custodian

Physician

Duty to control, supervise, or warn of specific threats to specific victims of imminent danger of serious bodily harm. 

Must be balanced with the rights of the "injurer".

--Dr./Patient confidentiality

Special relationship

Knowledge of a threat to a specific victim

Existence of a clear threat

Threat must be for serious bodily harm or death

Must be balanced against the injurer's right to privacy

Wrongful-always a duty to act

Innocent (J/S)-may or may not be a duty to act

Was the statute meant to prevent the type of harm that was suffered.

Yes-per se negligence

No-no per se negligence

3 part test from Uhr.

Whether P was in the class for whose benefit the statute was enacted

Whether recognition of the tort would promote the legislative purpose

Whether allowing the tort would promote the legislative scheme

Government has a duty to the public at large, not to specific individuals.

A claim must show a statutory responsibility by the D to the P (special relationship to victim), not just a general duty to society.

Intent of the statute must be to protect that particular P

Generally always give a duty to 1st parties (those served).

J/S over whether there is a duty to 3rd parties (those injured by those served)

Classification Scheme

Invitees

Licensees

Trespassers (Adult and Child)

Combined Classifications

Those that are there lawfully

Those that are there unlawfully (generally an exception for child trespassers)

No categories (don't forget this one)

Invitees (there for the economic benefit of the landowner)

Duty of due care to inspect and discover defects and either warn of dangerous conditions or make safe.

Duty may be imposed by the actual or constructive notice of the presence of invitees.

Duty may be imposed for foreseeable misconduct by third parties

J/S over whether there is a duty to make safe "open and obvious dangers"

Licensees are there with the consent of the occupier 

Duty to warn of or fix known dangers (no duty to discover risks)

An invitee who has overstayed is considered a licensee

If a trespasser consistently trespasses they can become a licensee through implied consent

Firemen and Policemen are considered licensees

Duty owed to Adult Trespassers

Under the classification system

Under a system that recognizes no classifications

Comes on the land without express or implied consent

Classification System

Occupier has no duty of care.  Does have a duty not to willfully, wontonly, or intentionally harm the trespasser

If a trespasser consistently intrudes upon a limited area he can be considered a licensee with implied consent

No Classification System

Occupier has a duty of care to all of those on his land, even trespassers.  

Attractive Nuisance Doctrine--owner owes a duty of due care where the premises contains a condition unreasonably dangerous to children who don't know any better.

Duty of due care to warn or protect children from the condition.  Provided:

--Foreseeability of trespass

--Foreseeability of harm

--Risk of injury outweighs the utility of the condition

--Child is unaware of the danger

Distinguish between acts and conditions

Acts--Duty of Due Care

Conditions--

In General:

1-Natural--no duty

2-Artificial--due care

Specific Areas:

3-Urban--always a duty of due care

4-Rural--natural-no duty, artificial-due care

Generally:

No duty of due care (unless statutorily imposed)

1. Existing or Foreseeable Danger to Those Outside the Premises
2. Concealed Dangers
3. Premises Open to the Public
4. Common Areas Under Control of the Lessor
5. Undertaking--conduct (negligent repair) or promise (generally a contract issue)
6. Foreseeable Misconduct by Third Parties

Traditional View:

P had to show that D caused emotional distress by subjecting P to 1) physical harm (parasitic b/c claim was attached to the claim for physical harm) and property damage (J/S) or 2) actual physical impact but no physical harm (impact rule)

Modern View:

The threat of impact will suffice (P within the "Zone of Danger") if the P has a physical manifestation (minimal) of the emotional distress

Nature of threat:

Generally there must be a danger of injury to P

J/S over emotional harm caused by apparent danger (potentially contracting HIV)

Time Frame:

Generally the threat must be immediate

Future harm may result in a cause of action (potential medical monitoring costs)

Death of P:

Estate may claim if the decedent was aware of impending doom (through a survival claim).

It is necessary to show that P was aware of what was about to happen.

Nature of threat (J/S over which is enough)

-Actual risk of harm

-Objective reasonable belief in risk of harm

-Risk of physical injury to property

-Risk of physical injury to others/pregnancy

Time Frame (J/S over which is enough)

-Immediate harm (satisfies requirement)

-Future harm/possible harm (possibly sufficient for medical monitoring, depends on the amount of risk)

Generally there is no duty.

Some courts allow exceptions based on a combination of these factors:

1)Close Family Relationship

2) Contemporaneity

3) Proximity

4) Death or Serious Injury--J/S over whether injury actually has to happen or just a reasonable belief that it is seriously threatened

5) Serious Mental Distress w/ physical manifestations

NY Approach:

Third party must have been in the zone of danger

Derivative Claim Issue:

Defenses that would bar victim from recovering may also bar third party.

J/S--allowing recovery on an independent claim may get around this

Intangibility of damages

Difficulty of proof

Need to impose a limit on the number of people a defendant has a duty to (ability for emotional harm to ripple through society)

Need to maintain proportionality of liability to wrongdoing

Where the victim dies what is the purpose of giving damages for emotional distress to the estate

Administrative Costs (floodgates)

Efficiency-The costs are real and should not be externalized

Fairness/Corrective Justice

Legal System is designed to handle problems of proof and measurement

Redress should be available even if there is a flood because that's what the legal system is for

Proximate Cause--was there some intervening cause that made the emotional harm worse

Damages--emotional harms are intangible losses and special rules may be applicable

Third Party Claims if Victim is Not Killed

Who can recover?

Loss of Consortium:

Elements that may be recovered:

1) Sex

2) Services

3) Companionship

4) Empathy

Who can recover?

Spouses (not if one spouse injures another)

J/S Children and Parents 

Is the claim derivative or independent (brings up issues of defenses to victim's recovery)

 Tangible elements that can be recovered:

1) Income of the deceased

2) Property damage 

3) Mental Distress, resulting econ. loss

Intangible elements that can be recovered:

1) Non-income producing services?

2) Companionship

3) Sex

4) Empathy

5) Grief

6) Indirect lost income/property?

Approaches to claims:

Survival-claiming--claim through estate of victim

--tangible claims are recoverable

--J/S over intangible claims

Wrongful Death-Derivative claim by victim's heirs for their harm

--primarily tangible losses are recoverable

Services

Sex

Companionship

(Earnings of a living victim are his loss, not the family member's loss)

Spouses of primary victim (No claim against a negligent spouse)

Children of primary victim (J/S)

Parents of Primary victim (J/S)

In some cases the claims are derivative (J/S)

Elements of Loss where the victim is killed

Losses of the deceased

Income/Earnings (Adjusted by cost of maintaining the decedent)

Damages to the property of the decedent

Medical Costs

Funeral Costs

Pain and Suffering/Mental Distress (must have been conscious to have experienced them)

Loss of Enjoyment  

Elements of Loss Where Victim is Killed

Losses of Others (Third Party Claims)

Non-income producing services

Companionship

Sex

Empathy

Grief

Indirect losses (income/property)

Approaches to Recovery Where Victim is Killed

Survival Claims

Deceased economic injuries are recoverable

J/S over:

--pain and suffering

--mental distress

--loss of enjoyment

Derivative Claim that is subject to defenses based upon victim's conduct

Approaches to Recovery Where Victim is Killed

Wrongful Death

Income/earnings of decedent (no double recovery with the survival claim if both are allowed)

Property Damage

J/S over intangibles (grief)

Generally treated as a derivative claim as well (subject to victim's conduct)

Child victims rarely have any economic losses

Wrongful Birth (Cause of action by parents for unwanted child)

Healthy Child

Actual Injuries:

Original Sterilization Costs

Pregnancy & Birth Costs (med, lost wages, pain & suffering, consortium)

Child Rearing Costs (3 approaches):

-Benefits always outweighs the costs

-Benefits sometimes outweigh the costs (case by case)

-Benefits are irrelevant

Wrongful Birth (Cause of action by parents for unwanted child)

Child with Disabilities (If risk of disability was the reason parents did not want another child)

Actual Injuries:

Original Medical Procedure

Pregnancy and Birth Costs

Costs of Rearing the Child

-Ordinary (J/S)

-Extraordinary

Emotional Distress (J/S)

Loss of Services/companionship of healthy child

Wrongful Life (cause of action by the child)

Healthy Child

Wrongful Life (cause of action by the child)

Child with Disabilities

Generally no recovery

Some courts allow extraordinary expenses not covered by parents