NEGLIGENCE: ELEMENT I: DUTY CHAPTER 13

NEGLIGENCE: ELEMENT I: DUTY CHAPTER 13

General Rule on Duty What is a duty? A duty is an obligation or a requirement to conform to a standard of conduct prescribed by law. Consider the following questions. Who owes this duty? To whom is the duty owed? When does the duty arise? What is the standard of conduct to which there must be conformity?

General Rule on Duty Whenever one s conduct creates a foreseeable risk of injury or damage to someone else s person or property, a duty of care arises to take reasonable precautions to prevent that injury or damage. Example?

Exceptions and Special Circumstances (1) the unforeseeable plaintiff, p. 215 (a) Zone-of-Danger test of duty (b) World-at-large test of duty (2) Nonfeasance and the special relationship, p. 217 (3) Gratuitous undertaking, p. 222

Unforeseeable Plaintiff See p.215 for Palsgraf sequence of events Plaintiff #1 is a foreseeable plaintiff who will have no trouble suing the railroad for the negligence of its employee a duty is clearly owed to the passenger. What about Plaintiff #2? Plaintiff #2 is an unforeseeable plaintiff was a duty owed to this plaintiff?

Unforeseeable Plaintiff cont. How do you determine if a duty was owed to Plaintiff #2? Look at the two major tests: (1) the Cardozo test aka zone-of-danger test. (2) the Andrews test aka world-at-large test.

2 Tests Zone-of-Danger Test (Cardozo): a duty is owed to a specific person (plaintiff) in the zone of danger, as determined by the test of foreseeability. World-at-Large Test (Andrews): a duty is owed to anyone in the world at large (any plaintiff) IF: 1) the plaintiff (who sues) suffers injury as a result of 2) unreasonable conduct of the defendant toward anyone, whether or not the plaintiff who sues was in the zone of danger.

2 tests cont. The two tests focus only on the element of duty. The Andrews test is broader than the Cardozo test. More plaintiffs can establish duty under the Andrews test because they do not have to be in the foreseeable zone of danger in order to be owed a duty. A choice between the two tests must be made when the facts involve a chain of events and an unanticipated person.

Nonfeasance and Special Relationships Most negligence liability is based on affirmative conduct that is improper or unreasonable aka misfeasance. With limited exceptions, negligence liability cannot be based on a mere omission or failure to act, called nonfeasance. Only if a special relationship existed between the plaintiff and defendant will nonfeasance by the defendant lead to negligence.

Do you have a duty to assist a stranger? You have no duty to assist someone simply because it is possible for you to give assistance without harming yourself. What about if a stranger refuses to come to the aid of a drowning victim??? There is NO requirement in our law to be a Good Samaritan. In fact a Good Samaritan can be sued for negligence if he or she fails to use reasonable care in rendering this free assistance.

Special Relationships Common carrier/passenger Innkeeper/guest Employer/guest Employer/employee Possessor of land/invitee Parent/child School/student Jail or prison/inmate

Soldano v. O Daniels Background: Soldano was shot and killed at a bar. The defendant, O Daniels, owns the Circle Inn, an eating establishment across the street from the bar and informed a Circle Inn bartender that a man had been threatened at the bar. The bartender was asked to either call the police or to allow him to use the Circle Inn phone to call the police. The bartender refused.

Soldano v. O Daniels cont. The victim s son sued the defendant for negligence, alleging that the bartender breached a legal duty owed to the decedent. At trial, the court granted the defendant a summary judgment. The plaintiff has now appealed to the California Court of Appeals for the 5 th District.

Soldano v. O Daniels Section 314A of the Restatement lists other relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance.

Soldano v. O Daniels cont. Was there a special relationship in this case? NO! It would be a stretch The California Supreme Court has identified certain factors to be considered in determining whether a duty is owed to third persons. See factors on p.221

Soldano v. O Daniels cont. As the Supreme Court has noted, the reluctance of the law to impose liability for nonfeasance, as distinguished from misfeasance, is in part due to the difficulties in setting standards and of making rules workable. Many citizens simply don t want to get involved. No rule should be adopted which would require a citizen to let a stranger in his house to use the telephone.

Soldano v. O Daniels cont. Holding: We conclude that the bartender owed a duty to the plaintiff s decedent to permit the patron from Happy Jack s to place a call to the police or to place the call himself. The possible imposition of liability on the defendant in this case is not a global change in the law. It is but a slight departure from the morally questionable rule of non-liability for inaction absent a special relationship

Soldano v. O Daniels cont. It is a logical extension of Restatement section 327 which imposes liability for negligent interference with a third person who the defendant knows is attempting to render necessary aid. However small it may be, it is a step which should be taken

Gratuitous Undertaking If you do something that you do not have to do, is there a duty to do it with reasonable care? An undertaking is simply doing something. The undertaking is gratuitous if there was no obligation to do it the defendant did it for free. Sometimes these undertakings aren t free rather they result from payment of one kind or another.

Gratuitous Undertaking cont. In the law of contracts, this payment is often referred to as consideration. For example: a homeowner may enter a contract with an electrician to re-wire a house for a set fee. The work of the electrician on the wiring is an undertaking supported by consideration. The electrician has the duty to perform the undertaking (re-wiring) with reasonable care.

Riss v. City of New York Background: for more than 6mths Riss was terrorized by a rejected suitor. Scared for her life, Riss contacted the police several times. However, the police stated that she would have to be hurt before they could act. On June 14, 1959 Riss became engaged to someone else and received a phone call warning her that it was her last chance. Completely distraught, she called police begging for help and was refused.

Riss v. City of New York cont. The next day, her ex (Pugach) carried out his dire threats in the very manner he foretold by having hired a throw lye (a corrosive substance) in Linda s face causing her to go blind in one eye and leaving her face permanently scarred. It was only after the attack that the authorities concluded that there was some basis for Riss s fears.

Riss v. City of New York cont. This appeal presents, the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection. The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed.

Riss v. City of New York cont. At this time, there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public. For the courts to proclaim a new and general duty of protection in the law of tort, could inevitably determine how the limited police resources should be allocated.

Protection for the Good Samaritan The Good Samaritan rules do not encourage people to come to the aid of their fellow citizens. Some studies show that 1 in 6 potential volunteers refuses to become involved because of a fear of a lawsuit in the event that mistake is made while trying to render aid. Many would-be rescuers conclude that the wiser course is to mind my own business.

Protection for the Good Samaritan To combat this uncharitable inclination, a few states have passed laws requiring a citizen to become a Good Samaritan in emergency situations. However, most states do not go this far. It is far more common for a state to encourage rescue efforts by relieving Good Samaritans of civil liability for negligence in rendering emergency care or assistance.

Protection for the Good Samaritan In 1997, Congress passed the Volunteer Protection Act, which provides that no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer.

Protection for the Good Samaritan Exceptions: the volunteer can be liable for harm caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer. This federal act applies to every state unless the state already provides protection for the volunteer or they opt out.

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