Torts New Duty

Question 1

Herman: Only four exceptions to not having affirmative duties

Answer 1

1. Special Realtionship
2. Voluntarily undertakes an act (esp. to warn or to act)
3. If you created a risk of harm to others
4. If you actually have injured someone

Question 2

Give the five special relationships from which duty can be taken

Answer 2

1. Innkeepers and guests
2. Common carriers and passengers [unless NY]
3. Possessors of land who hold it open to the public
4. Persons who have custody of another in circumstances where the other person is deprived of normal opportunities for self protection
5. Co adventurers on a hazardous undertaking (Tarasoff)

Question 3

The ruling in Herman

Answer 3

the fact that an actor realizes that acting on his or her part is necessary for another’s aid or protection does not itself impose upon the actor a legal duty to take such action, unless a special relationship exists between the parties.

Question 4

A court can decide against a duty by way of…

Answer 4

Policy considerations

Question 5

Explain the distinction between who owes duties when providing alcohol to minors

Answer 5

Social hosts generally do not have a duty toward someone allegedly injured as a result of the hosts providing alcohol to their guests.

Commercial vendors of alcohol typically DO have a duty to persons allegedly injured as a result of the vendor providing alcohol to its customers - they have the means to monitor and keep track.

Question 6

Negligent entrustment

Answer 6

One who supplies a chattel for the use of another whom the supplier knows or has reason to know is likely to use it in a manner involving unreasonable risk of physical harm to himself or others in subject to liability for resulting physical harm.

Question 7

Tell me the case that says a public utility doe NOT have affirmative duties to provide service

Answer 7

Strauss

Question 8

Strauss

Answer 8

A public utility does not have an affirmative duty to provide service, and it does not owe non-customers a duty to take reasonable care

Question 9

What is the traditional rule for landowner duties?

Answer 9

The duty that a landowner owes to the person on the land depends on the reason the person is there

Invitee v Licensee v Trespasser

Question 10

Who are invitees?

Answer 10

One who is invited to the land with a expectation of material benefit to the owner or one who is invited on the land as a member of the public for a purpose which the land is held open to the public

Question 11

Who are Licensees?

Answer 11

Any person who is on the land with permission who does not meet the definition of an invitee

Question 12

Who are Trespassers?

Answer 12

Any person on the land without permission

Question 13

Traditionally, what duties are owed to invitees?

Answer 13

A landowner must take reasonable measures to warn or make safe any dangerous condition of which they are aware or should be aware after a reasonable inspection

Question 14

What are the four criminal act as forseeable tests, and which is most common?

Answer 14

1. Landowner is aware of a specific harm about to befall invitee
2. Evidence of prior similar incidents near premises
3. Using the totality of the circumstances, all relevant facts.
4. Balancing the forseeability and gravity of the harm against the burden imposed to protect against that harm(breach is included in this test)

Question 15

What duties are traditionally owed to trespassers?

Answer 15

No duties, outside of willful and wanton harm

Question 16

Majority of states take the modern approach…what is it?

Answer 16

Where Lisencees and invitees are both owed a duty of reasonable care

Question 17

Constructive notice and modern landowner duty approach

Answer 17

Jury decides whether or not landowner should have made an inspection

Question 18

What duties do landowners owe to trespassers under the modern approach?

Answer 18

You owe a duty of reasonable care to trespassers, but not flagrant(those attempting to commit a felony) trespassers.

Question 19

Traditional rule, toward tenants

Answer 19

Only owes duty toward their tenant if the injury is attributable to one of the following things

1. A hidden danger of which the landlord was aware but the tenant was not aware
2. Premises leased for public use
3. Premises retained under the landlord’s control(such as common areas); or
4. Premises negligently repaired by the landlord

Question 20

Sovereign immunity

Answer 20

government has immunity from suit, cannot be held liable without government consent

Question 21

How do you have a special relationship with cops?

Answer 21

1. The police assured an affirmative duty to act through promises or action
2. They had knowledge that inaction could lead to harm
3. There was direct contact between police and the injured party; and
4. The injured party justifiably relied on the police’s undertaking

Question 22

What duties does the government have when made aware of a dangerous traffic conditon?

Answer 22

to undertake a reasonable study with the goal of alleviating the danger, can only be held liable if there is no reasonable basis for the recommendations made.

Question 23

Under the doctrine of qualified immunity, the government cannot be held liable simply because there is disagreement regarding the recommendations given after learning about a dangerous traffic condition But it does have a duty

Answer 23

To complete the recommendations within a reasonable period of time. And can be held liable for an unjustifiable delay in doing so.

Question 24

Loss of consortium

Answer 24

When one spouse is physically injured as a result of the defendants negligence, the other spouse has a cause of action for loss of consortium - emotional harm suffered by the other spouse as a result of the loss of the injured spouse physical and emotional companionship and support through the partnership of life’s mundane activities

Question 25

Physical Impact and non physical duties

Answer 25

A person who sustains a physical impact as a result of the defendants negligence may recover for any emotional injury that accompanies the physical impact

Question 26

Exceptions to the no emotional injury rule

Answer 26

Zone of danger exception (when someone else is at immediate risk of physical harm), negligently mishandling a corpse, and negligently and incorrectly informing someone of the death of a family member

Question 27

Duties professional owes

Answer 27

A professional who negligently supplies false information to another may be held liable for economic loss caused to that person by that persons Justifiable reliance on the information.

Typically, limit this duty to the recepient or one of a limited group of people that the professional intends to rely on the information or knows they intend to rely on

Question 28

can you recover for economic loss?

Answer 28

You can recover for economic loss caused by physical injury or property damage. But not economic loss alone.

Question 29

Apparent Authority iff

Answer 29

1. Agent represents the principal
2. Reliance on that representation by the third party
3. Change in position because of that reliance

Question 30

Two general sovereign immunity approaches

Answer 30

Governmental v. Propriatary
or;
Discretionary v. ministerial

Question 31

All landowners have a duty of reasonable care for all lawful visitors, and the standard
of reasonable care considers 7 factors according to this case

Answer 31

Heins

Question 32

Heins Landowner reasonable care Factors

Answer 32

1. Foreseeability or possibility of harm
2. Purpose for which the entrant entered the premises
3. Time, manner, and circumstances under which the entrant entered the
   premises
4. Use to which the premises are put or are expected to be put
5. Reasonableness of the inspection, repair, or warning
6. Opportunity and ease of repair or correcting or giving of the warning
7. Burden on the land occupier and/or community in terms of inconvenience or
   cost in providing adequate protection.

Question 33

Emotional damages are recoverable only when

Answer 33

Accompanied by a physical impact

Question 34

What case gives us the four no affirmative duty exceptions?

Answer 34

Herman