Limiting or Expanding the Duty of Care According to Context or Relationship

     I.    Limiting Duties According to Class or Status of the Parties

A.    Landowners’ Duties to Trespassers, Licensees, Invitees, and Children

a.  Traditional entrant categories/duty

1.    Circumstances where landowners/occupiers may owe duty of care (beyond traditional, limited duty) to licensees and/or trespassers:

a.    Reason to know of entrant and danger

b.    Conditions v. actions

c.    Frequent trespassers in limited area

d.    Foreseeable highway user

2.    Gladon v. Greater Cleveland Regional Transit Authority – P invitee only in station & on train. P on tracks, so is a trespasser on tracks where he was injured (but he was pushed onto tracks, so can’t be held liable as a trespasser). So, D’s duty is to avoid reckless/willful acts only. So question was if conductor acted reasonably once she saw him (for jury to decide).

b.  R2T §339: The Attractive Nuisance Doctrine – Landowner liable for harms caused to trespassing children if lured onto land b/c of an artificial condition there if:

a.    landowner knows or has reason to know that children are likely to see condition & trespass, and

b.    landowner knows or should knows the risks to children, and

c.    children don’t appreciate the danger b/c of their young age, and

d.    burden of landowner of maintaining or eliminating the danger slight compared to risk to children, and

e.    Landowner fails to exercise reasonable care to eliminate danger or otherwise protect children

2.    Bennet v. Stanley – boy trespassed to neighbor, and drowns in pool; mother dies trying to save him. Attractive nuisance doctrine – D owes duty to protect child (pool unguarded, very dangerous), Mother – rescue doctrine.

c.    Open and obvious danger

1.    O’Sullivan v. Shaw – P gets injured while diving headfirst into shallow end of pool. Danger so apparent, that D does not need to warn.

d.  Eliminating the traditional entrant categories

1.    Rowland v. Christian – P (D’s guest) injured by faucet. P knew of risk, but didn’t warn P. Maj. says D has duty to warn P (traditionally, P would be licensee, and then D wouldn’t be liable, but here eliminates the distinction btwn licensee & invitee (Dissent goes for the traditional classifications.

e.   Lessors - landlord must use due care (to be determined by evidence) in maintenance of property

1.    Pagelsdorf v. Safeco Insurance Co. – tenants moving out, P (movers) injured when railing they were leaning on crumbled b/c of dry rot. Better policy is to require landlord to exercise due care for maintenance (question is whether he did use due care. Must find out if there was notice of defect, its obviousness, etc).  No longer using traditional entrant categories.

B.    Medical Malpractice – Negligence of Dr to use reasonable care under circumstances.

a.  Reasonable Care

1.    If Dr has skill that exceeds avg Dr, standard of care based on his own skill.

2.    Law recognizes Drs have diff abilities, but minimum keep up with developments and use best judgment.

3.    No guarantee to good result; Dr liable only if negligent.

4.    “Two schools of thought” Doctrine - When there are medically acceptable alternatives, a Dr is not liable for using one method as opposed to another as long as it is reasonable for Dr to use that method (b/c it’s widely accepted).

a.    Walski v. Tiesenga – P goes into surgery; bad outcome. P’s expert says he would have used a diff method. Dr not unskillful or negligent, just of a differing opinion than the expert. D’s method was not proven unacceptable.

5.    A deviation or departure from accepted practice, traditionally based on community standards [locality rule], but use similar areas as basis [modified locality rule]. 

a.    Vergara v. Doan – P saying Dr negligent, but D says use the modified locality rule, which permits a lower standard of care. The reasons this rule was established no longer apply.  Technology has allowed rural doctors the same training, facilities, etc as an urban doctor.

b.  Good Samaritan statutes

1.    Emergency care - Any individual … who in good faith renders emergency care at the scene of an accident or emergency to the victim, or while transporting the victim to a hospital or other facility where treatment or care is to be rendered, shall not be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care (also provides relief from civil liability for practitioners rendering emergency care).

c.                 Non-Medical Practitioners – standard not based on medical standards, only according to their school of belief (chiropractors, Christian scientist

d.  Proving negligence – common-law exclusion of treatises as hearsay

1.    Smith v. Knowles – P could only show medical treatises to prove D’s negligence. Treatises ok to provide medical facts, but legally insufficient to provide a standard of care (experts better for that).

a.    Possible ways (in some jurisdictions) for P to establish standard of care w/o relying on expert testimony:

(a)  Manufacturer’s directions

(b)  Defendant doctor’s admissions

(c)  Medical practice guidelines

(d)  Arguments that public policy requires ordinary (reasonable) care standard

(e)  Res Ipsa Loquitur

e.  Res Ipsa – P must have unusual injuries (not of the kind that happens w/o negligence), while P is unconscious, has to be injured during medical treatment.

1.    States v. Lourdes Hospital – P under anesthesia, cannot show how injury happened. Use res ipsa. Expert necessary to explain to jury common knowledge in medical community.  Jury decides if negligence more probable than not, and probably D.

2.    Ybarra v. Spangard – P under anesthesia, use res ipsa, but many ppl involved, cannot prove probably defendant (exclusive control), & all cannot be responsible b/c of diff functions. Court holds all D jointly liable, b/c Ds knows more info, and they should come forward with it.

f.  Informed Consent

1.    Harnish v. Children’s Hospital Medical Center – Dr failed to disclose a risk of operation, and P injured. P may not have gone through w/ operation if he knew of the risk. Important to have informed consent – ppl have right over their own body (dignity).

a.    Is this something Dr should have known & informed patient of? – expert testimony needed for this

b.    Would a reasonable person still have proceeded with operation? – jury question.

   II.        Relationships or Their Absence

A.    Nonfeasance –  No Duty to Act (as opposed to misfeasance – negligence in actively doing something)

a.  R3T § 37 - An actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless a court determines that an affirmative duty is applicable.

1.     Yania v. Bigan – D came to P’s coal-mining operation; P taunted D, which induced D to jump in trench & he drowned. P didn’t help him. No duty to act. P not responsible for D jumping into water (D is adult making own choices).

B.  Exceptions to “No Duty to Act” (Affirmative Duties):

a.  R3T § 39. D’s prior conduct, even though not tortious, creates the risk of harm characteristic of the conduct, has a duty to exercise reasonable care to prevent or minimize the harm.

b.  Voluntary Undertaking – R3T §42:  actor who voluntarily undertakes to render services to another has a duty of reasonable care if (1) failure to do so increases risk of harm or (2) person relies on actor’s exercising reasonable care (b/c of imminent danger).

1.    Wakulich v. Mraz – Ds induce minor P to drink full bottle of alcohol for $; P becomes sick. Normally no duty to act, but they voluntarily undertook caring for her by checking in on her, and also b/c by barring a call to 911, they took it upon themselves to care for her.

c.   R3T § 38. - When a statute requires an actor to act for the protection of another.

d.   R3T § 40. If there is a special relationship then owe duty of reasonable care.(ex.  Employer/employee, business/customers, school/students, landlord/tenants).

1.  Farwell v. Keaton – D’s friend gets hurt. D could have helped w/o endangering himself. B/c of special relationship, D had an affirmative duty of due care (implied understanding that D would help his friend).

e.  Constitutional Duties

1.   DeShaney v. Winnebago County Dept. of Social Services – Son badly injured by father.  Many witnesses, no one said anything. Mother suing based on XIV amendment.  No duty – meant to protect citizens from state, not citizens from each other, so state only has to exercise reasonable care.

a.    Dissent – says that state created an exclusive method of dealing with domestic abuse, and the ppl who had authority didn’t take care of it. State’ conduct produced the risk of harm to the child (by not allowing others to get involved, so they HAVE to).

2.    Bases for “constitutional duties” b/c person no longer in control of themselves, but state has complete control, so state owes a duty:

a.    P was in custody and officials intentionally failed to protect her;

b.    P was victim of selectively unfavorable treatment of disfavored groups;

c.    P had an entitlement created by state claw and the officials deprived her of that entitled without due process; or

d.    officials actively created the danger that resulted in harm to the plaintiff. **** (dissent goes here)

C.    Duty to Protect from Third Persons

a.  Defendant’s relationship with the plaintiff

1.    Posecai v. Wal-mart Stores, Inc. – P robbed in D’s parking lot. Court says there is a duty as a matter of law. The greater the foreseeability of harm, the greater the duty of care imposed.

a.    Approaches in determining duty of businesses/landowners:

(a)  Specific harm rule – if aware of imminent specific harm

(b)  Prior similar incidents (foreseeability)

(c)  Totality of circumstances  - takes into account other factors that may affect foreseeability

(d)  Balancing test – balances the interests (risk-utility)

b.    Comment (j) to § 7:  The proper role for foreseeability. The extent of foreseeable risk depends on the specific facts of the case. Thus, courts should leave such determinations to juries unless no reasonable person could differ on the matter.

c.  Comment (f) to § 37 – reliance on foreseeability happens more often in cases of affirmative duties, & especially in cases of protecting 3^rd parties (& involving criminal acts).  Courts may develop rule or balancing tests to determine foreseeability, or to determine insufficient evidence of foreseeability, so no jury can make a finding.

d.    Comment (d) to § 37 - business may provide occasion for risks or 3^rd part misconduct. Here, business must exercise reasonable care.

2.    Marquay v. Eno – P (students) abused by D’s (school) personnel. Statute says they must report the abuse (negligence per se); no legislative intent for statute to infer a duty. School has affirmative duty b/c of special relationship (imposes on them duty of reasonable supervision).

b.  §41: Defendant’s relationship with dangerous persons, actor owes duty to 3^rd person b/c of risks established from the relationship.

a.    Special relationships can be: (1) a parent with dependent children, (2) a custodian with those in its custody, (3) an employer with employees, and (4) a mental-health professional with patients.

2.    Tarasoff v. Regents of University of California – patient confesses to therapist that he wants to kill someone. Therapist (D) warns campus police, but not P. D kills P. D had duty to warn P and exercise reasonable care to protect foreseeable victims

a.    Problem: confidentiality – lawsuits may arise. But court says safety more important (cost of warning is low). Also, maybe false warning. Expert testimony to show if therapist acted prudently or not.

3.    Brigance v. Velvet Dove Restaurant, Inc.- D (restaurant) negligently served alcohol to a clearly intoxicated person. Commercial vendor has duty. Driving intoxicated high risk & very foreseeable. But also must show proximate cause.

a.  Dram Shop Laws – establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third-parties—those not having a relationship to the bar, as a result of alcohol-related car crashes and other accidents.

  III.  Limiting Duties to protect against special types of harm

A.    Emotional Harm

a.  R3T §45 Intentional (Or Reckless) Infliction Of Emotional Disturbance - D is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm.

1.    GTE Southwest, Inc. v. Bruce – boss terrorized employees. To prove intentional infliction of emotional distress must prove:

a.    D acted intentionally or recklessly

b.    Conduct was extreme or outrageous

c.    D’s conduct is substantially certain to caused distress and did cause P severe emotional distress

d.    D knows of risk, and fails to precaution against it, when cost is so low

2.    May infringe on free speech rights/ onslaught of claims. Mere insult insufficient. Btwn strangers not enough, must be a relationship.

a.    Exception: racial slurs in employee-employer context

3.    Comment (l) Emotional disturbance caused by harm to a third person - limits recovery to bystanders who are close family members and who contemporaneously perceive the event.

a.    Homer v. Long – Therapist (D) seduces P’s wife; causes divorce. D not liable to P (only to wife). P was close family member, but was not present, so D didn’t intend to harm P (unknown presence wouldn’t work either b/c D didn’t have the intent). *Maybe if P was a patient of D’s there’s a special relationship, then D could be liable, or if D did it on purpose to hurt P.

b.   Negligent Infliction of Distress or Emotional Harm

1.    Defendant’s negligent acts put the Plaintiff at immediate risk of personal injury

2.    Emotional distress/harm resulting from injury to another

(a)  Tort → Emotional Harm (no physical harm)

c.                 No physical risks (Tort = the emotional harm)

1.    R3T § 46 (b). – D’s negligent conduct which directly inflict emotional disturbance is liable if it occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance.

a.    Sacco v. High Country Independent Press, Inc.- P left D’s employment (newspaper). D told police P stole photo negatives and proofs. P can recover. Serious or severe emotional distress to the P was a reasonably foreseeable consequence of the D’s negligent act or omission.

d.   Toxic Exposures:  R3T § 46 (c) Exposure to a toxic substance requiring a significant latency period, and subclinical effects that do not rise to the level of bodily harm, do not satisfy the zone-of-danger requirement (nor would it constitute impact)

1.    Potter v. Firestone Tire and Rubber Co. - D dumps carcinogens into local water. P drank water. P cannot recover b/c fear of cancer not recoverable, unless P can show there’s a good chance of getting cancer.

a.    Could use lost chance doctrine here, recovery discounted by probability of getting cancer).