TORT DUTY

Nota:

• Duty is a legal obligation to act in a reasonable manner. The π should treat the ∆ with a duty to care.

1. General Duty of Reasonable Care

   Nota:

   • “[A]n actor owes a duty of reasonable care under the circumstances to those persons who are foreseeably (at risk) exposed to physical risks arising from the actor’s conduct.”
   1. RE 3d §7 - Pubic Policy Influencing Duty Decisions
      1. Allocation of Loss
      2. Fairness
      3. Deterrence or Accident Avoidance
      4. Economic Considerations
      5. Administrative Concerns Related to the Legal Process
      6. Legislative Considerations
2. Limited Duties

   Nota:

   • No affirmative duty to rescue; Limited duty:     for land occupiers;     to control the conduct of others;     to avoid emotional harms; and     to avoid economic damages.
   1. Prevent Harm
      1. Duty to Rescue

         Nota:

         • Restatement 2d 314 “The fact that the actor realizes or should realize that action on his part is necessary for another’s aide or protection does not of itself impose upon him a duty to take such action.”
         1. EXCEPTIONS
            1. Special Relationship

               Nota:

               •     ◦    parent-child     ◦    employer-employee)     ◦    land possessor-user     ◦    someone who takes          someone else into custody     ◦    chattel possessor-user     ◦    doctor-patient
            2. Creating the Peril

               Nota:

               • If the ∆ creates the peril. a duty to rescue π is created.
            3. Undertaking to Act & Reliance

               Nota:

               • ∆ has an affirmative duty to rescue if the actor begins the rescue or promises to aid and that promise causes or prevents others from assisting.
            4. Contract

               Nota:

               • A rescue obligation arises from a contract. (e.g. lifeguard, baby-sitter, teacher, fireman, police, etc.)
      2. Duty to Control / Warn

         Nota:

         • Generally a person has no obligation to control another's personal actions in order to prevent harm to a 3d person.
         1. EXCEPTIONS
            1. Special Relationship

               Nota:

               •     ◦    parent-child     ◦    employer-employee)     ◦    land possessor-user     ◦    someone who takes          someone else into custody     ◦    liquor seller-user     ◦    doctor-patient
            2. Special Knowledge

               Nota:

               • Knowledge (actual or constructive) of the need to control. (e.g. mental patient, prisoner, parolee, child/minor, employee).
            3. Negligent Entrustment

               Nota:

               • MISFEASANCE Suppying a potentially dangerous instrumentality (e.g. money, car or gun) to a person the ∆ knows is not fit to handle it.
      3. Duty to Protect

         Nota:

         • As a general principle, there is no duty to protect another from harm.
         1. EXCEPTIONS
            1. Special Relationship

               Nota:

               •     ◦    parent-child     ◦    employer-employee)     ◦    land possessor-user     ◦    jailor-prisoner     ◦    chattel possessor-user     ◦    hospital-patient     •   common carrier - passenger
            2. Specific Harm Test

               Nota:

               • A land owner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur.
            3. Prior Specific Incidents Test

               Nota:

               • A land owner may owe a duty of responsible care if evidence of prior similar incidents of crime on or near the landowner's property shows that the crime in question was foreseeable.
            4. Totality of Circumstances Test

               Nota:

               • A court considers all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.
            5. Balancing Test

               Nota:

               • The court balances “the degree of foreseeability of harm against the burden of the duty to be imposed.”
         2. Police Duty

            Nota:

            • 1. A municipality may not be held liable for simple failure to provide police protection; 2. The protection is ordinarily one owed to the public at large and not any particular individual or class of individuals; and 3. The allocation of Police  to protect its citizens is regarded as  a resource-allocating function that is better related to the discretion of policy makers.
   2. Land Owners
      1. Status Trichotomy
         1. Invitee
         2. Licensees
         3. Trespassers
   3. Emotional Distress
      1. Zone 1

         Nota:

         • Fear for One’s Own Physical Well-Being (Direct Action)
      2. Zone 2

         Nota:

         • Fear for the Physical Well-Being of Another (Bystander)
3. Novel/Complex Duty

   Nota:

   • In the novel situation, i.e. when one overrules a limited duty limitation or creates a new duty, a judge will use the "Rowland Factors" to determine duty.
   1. Rowland Factors
      1. Forseeabilty
      2. Burden
      3. Proximity
      4. Blame
      5. Prevention
      6. Injury
      7. Insurance
4. Misfesance

   Nota:

   • ACTIVE misconduct working to positive injury to others. The victim is positively worse off as a result of the wrongful act.
   1. Active Misconduct
   2. Negligent Omission

      Nota:

      • A type of misfeasance where one fails to to do something that a reasonable person would do while engaging in another activity (Eg. Not paying attention while driving, texting or talking on a phone)
5. Nonfesance

   Nota:

   • π’s harm is caused by the ∆’s failure to intervene.
   1. Passive Inaction

      Nota:

      • Passive inaction - a failure to take positive steps to benefit others or to protect them from harm not created by any wrongful act by the ∆. <No Duty>
      1. Failure to Intervene

         Nota:

         • The law requires no affirmative duty to intervene.
         1. Innocent Accidental Conduct
            1. Reckless Conduct

               Nota:

               • ∆ acts with a deliberate disregard of the high degree probability that harm (e.g. emotional distress) will ensue.
               1. Negligence

                  Nota:

                  • The ∆ was negligent. The π was harmed. That ∆’s negligence was a substantial factor in causing π’s harm.
               2. Intentional Conduct