Duty of Care - Negligence Flashcards
who decides duty of care
matter of law, judge decides, case can be prevented from being presented to a jury if duty of care element is not satisfied
What is duty of care
obligation for ppl to exercise r-ble care to avoid foreseeable harm to others
General rule: No affirmative duty to help. 3 Exceptions?
- pre-existing special relationship bw P & D
- D’s own N conduct put P in danger
* **If D’s innocent conduct somehow creates the danger, traditional doctrine holds that no affirmative duty is incurred. - D assumed the duty to help
No affirmative duty to help - overarching rule (default)
The law does not require persons to be good Samaritans to help people in danger/distress
- this is true even if NO OTHER HELP has yet arrived.
- Despite the general no-affirmative-duty (to help) rule, there is an affirmative duty to help or take other affirmative actions in situations involving certain pre-existing relationships.
Examples of pre-existing special relationship bw P&D that incur D’s affirmative duty to help/act?
- common carriers, to passengers
- innkeepers, to guests
- landlords, to tenants
- stores, to customers
- possessors of land open to the public, to members of the public LAWFULLY present
- schools, to students
- employers, to employees
- jailers, to prisoner
- day-care providers, to the children or adults being cared for
Eg. of pre-existing special relationship (exception to the general no-affirmative-duty to help rule)
If a fire breaks out for reasons NOT having to do with N on the part of the hotel, the hoteliers are NONETHELESS under a duty to help patrons to safety
If a customer in a store has a heart attack and falls to the floor, the storekeepers have a duty to dial 911, clear a space, etc.
If D left banana peel in the road, P slips on it and falls. D has a duty of care to help P?
D has a duty of care to help P out of the road before a truck comes along and strikes P.
If P is hurt badly enough, D has an affirmative duty to call emergency services, etc.
- If D (a 3rd party) starts to render aid, does D have duty to help?
If D stops to help P, then D has assumed a duty.
AKA: D is LIABLE for any ADDITIONAL harm caused by his failure to take the affirmative steps to follow through, that are r-ble under the circumstances.
- eg. call 911, assuming there’s cell phone service
Once D began to help, D can’t “un-assume” the duty by leaving the scene.
Of course, once emergency responders have arrived, he could leave, since r-ble care would NOT require him to stick around any more.
Reasoning behind making D who starts to help assume duty of care to take r-ble, affirmative steps to prevent additional harm?
Once a bystander voluntarily INTERCEDES to help, this makes is less likely that other ppl will come and help P.
(D helping P prevents P from receiving other ppl’s help)
So if D comes to help P, but then acts carelessly or fails to follow thru, P will be left in a WORSE position than if D had NOT started to help P in the first place.
- If D’s innocent conduct somehow creates danger to P, does the traditional doctrine hold that D has affirmative duty of care?
No
***Tarasoff exception
- there was a concern that finding a duty of the Dpsychologist would cause future psychotherapy patients to reveal less in therapy sessions, thereby making therapy less effective, which ultimately could cause society greater harm than the occasional harm done to 3rd parties that might have been prevented with a warning.
Role of legislatures discussed in Tarasoff
- in what ways might legislatures be better than courts in making such changes?
Tarasoff raised the question of whether the courts or legislatures are better equipped to deal with the competing concerns raised in considering a change to tort law.
