Duty of Care Flashcards
MacPherson v. Buick Motor Co.
Major topical rule
There is nothing anomalous in a rule which imposes upon A who has contracted with B, a duty to C and D and other according as long as he knows or does not know that the subject-matter of the contract is intended for their use.
Weirum v. RKO General Inc.
Major Rule
One breaches his duty of ordinary care when his actions foreseeably cause a third party to act negligently, which results in unreasonable harm
Fish v. Waverley Elec. Light and Power Co.
If a company is contracted by the employer to install celling lights they have a duty to the employees.
Flannelly v. Delaware & Hudson Co.
Major topical rule
The question of determining duty of care is generally left to the jury.
Manhattan by Sail, Inc. v. Tagel
If the case of the accident is not in question and the only possible cause is one of negligence a plaintiff may move for summary judgement.
Restatement Third of Torts § 7
LIABILITY FOR PHYSICAL AND EMOTIONAL HARM
Ordinarily… a duty to exercise reasonable care exists with regard to causing physical harm but recognizes that for reasons of principle or policy courts may determine that an exception should be created for a given class of cases.
Duty arises under which of the following:
nonfeasance; misfeasance; malfeasance
Malfeasance absolutely does because the actor is creating the risk
Misfeasance and nonfeasance require a special duty otherwise inaction does not create a duty
What is nonfeasance?
Nonfeasance is the failure to act
Duty is almost always connected to warning someone
Usually no duty
What is misfeasance?
Misfeasance is an affirmative act w/o malicious intent
One is liable for breaches of duty already owed (can be choosing not to act or deciding not to do something)
Duty depends on circumstances
What is malfeasance
willful and intentional cause of harm
duty is created if it did not already exist because of the creation of an unreasonable risk
Rowland v. Christian
Major topical rule
The following Rowland factors are used to find if a duty exists in situations not previously considered: (1) the foreseeability of harm to the plaintiff;
(2) the degree of certainty that the plaintiff suffered injury;
(3) the closeness of the connection between the defendants’ conduct and the injury suffered;
(4) the closeness of the connection between the defendant’s conduct and the injury suffered;
(5) the moral blame attached to the defendant’s conduct;
(6) the policy of preventing future harm;
(7) the extent of the burden to the defendant and consequences to the community of imposing the duty to exercise care with resulting liability for breach; and
(8) the availability, cost, and prevalence of insurance for the risk involved.
Usually used to consider duty to a third party
Palka v. Servicemaster Management Services Corp.
To find duty to a third party, the relationship between the defendant’s contractual obligation and the inured non-contracting party’s reliance and injury must be direct and demonstrable not incidental or merely collateral.
In re New York City Asbestos Litigation
A plaintiff could not sue a partner’s employer because of asbestos carried home on clothing from work because a duty was found only to the employee in New York.
Restatement (Second) of Torts § 315
(1) There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless:
(a) A special relationship between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct; or
(b) A special relation exists between the actor and the other which gives to the other a right to protection.
Quiroz v. ALCOA Inc
In Arizona a court found no basis or a duty by the employer to a family member of its employee
One of two views, contrasted by Quisenberry
Quisenberry v Huntington Ingalls Inc.
Rejected a no duty argument based on lack of relationship to find in the vast majority of negligence actions the parties did not closely know each other before the incident so actions can be based on a broad duty not to injure others by action or omission.
White v. Sabatino
Taking on responsibility as the DD creates a duty to third persons as the driver has assumed a duty of care but a broken promise and therefore failure to act as DD is not a basis as it lacks the affirmative action
Do the majority of states allow for actions against utility companies for their services or failure to provide it?
No. Only four states allow it, though the view is begining to fade
Moch Co. v. Rensselaer Water Co.
Court declined to extend the duty of care to non customers even when they use the service provided for by the customer (city contracted with a water company means no duty for people that use the water).
Strauss v. Belle Realty Co.
As a matter of pubic policy, utility companies do not owe a duty to people who experience an accidental stop of services, like a blackout, in the absence of a preexisting contractual duty.
Food Pageant v. Consolidated Edison Co.
The electric company was liable for injury caused to a grocery store when the incident was caused by employees failing to follow procedure rather than an outside incident.
Clay Electric Cooperative Inc v. Johnson
A utility company under contract to maintain street lights owes a duty to a pedestrian who was hit by a car in an area darkened due to failure of the company to maintain the lights because of the undertaking doctrine
Louisville Gas and Electric Co v. Robertson
A court relied on the undertaking doctrine to impose a duty on a utility that contracted to maintain street lights.
Heaven v. Pender
A duty of reasonable care can attach if it is reasonably foreseeable that an actor’s careless conduct may risk physical harm to another who is not in contract with the actor but who has been given permission to enter and who has entered the actor’s premises
Harper v. Herman
Major Topical Case
Knowledge of a foreseeable risk alone does not impose a duty to warn or protect.
Delgado v. Lohmar
The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protect does not impose a duty to take that action unless a special relationship exists.
Restatement Second of Torts § 314
A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
An innkeeper is under a similar duty to his guests.
A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
Andrade v. Ellefson
Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition however
Minority rule
Bjerke v. Johnson
When a child is boarded for an extended period of time with an unrelated adult, a special surrogate parent or custodial relationship can develop with the same duties as a biological parent
Farwell v. Keaton
The existence of a duty is ordinarily a question of law however, if there are factual circumstances which give rise to a duty the existence of those facts must be determined by a jury.
Expansion of duty
Union Pacific Railway Co. v. Cappier
There is no duty to help a victim who was non-tortiously run over while trespassing on the defendant’s railroad tracks
Maldonado v. Southern Pacific Transportation Co.
The court relaxed Cappier and imposed a duty to help and recognized the Second Restatement of Torts § 322
Second Restatement of Torts § 322
If an actor knows or has reason to now that by his conduct whether tortious or innocent, he has caused such bodily harm to another as to make them helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm
Simonsen v. Thorin
Whoever puts an obstruction on a public highway even without negligence is under an obligation to remove the nuisance or use ordinary care to warn the other traffic of the danger ahead.
Menu v. Minor
The court found the driver had no affirmative duty to warn people of the immovable car that blocked a lane because he had not voluntarily issued a duty to the plaintiffs
Second Restatement of Torts § 324
Duty of One Who Takes Charge of Another Who Is Helpless
(1) One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the 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.
Special relationships (always/can/never) automatically create a duty
Can, but not always.
Special relationships (always/can/never) automatically create a duty
Can, but not always.
