Torts: Section 2 Fall, 2002

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Cases in which you act unreasonably, in a way
that threatens foreseeable harm to
others MacPherson you are liable to anyone who
might foreseeably be harmed by your actions Palka
(hospital fan case) you are liable, but only to
specifically foreseeable victims -- a limited
class, known to be affected, directly
demonstrably rely Strauss you are liable, but
only to customers, in their residences Pulka
(garage case) you are not liable to anyone,
because you have no duty.
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Strauss, at page 177 In fixing the bounds of ..
. duty, not only logic and science, but policy
play an important role. The courts definition
of an orbit of duty based on public policy may at
times result in the exclusion of some who might
otherwise have recovered for losses or injuries
if traditional tort principles had been applied.
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Chapter III Duty The Rowland factors
We depart from this fundamental principle only
upon the balancing of a number of
considerations 1) foreseeability of harm to the
plaintiff 2) degree of certainty that the
plaintiff suffered injury 3) closeness of
connection between the defendants conduct and
the injury suffered 4) moral blame attached to
the defendants conduct 5) the policy of
preventing future harm 6) the extent of the
burden to the defendant and consequences to the
community of imposing a duty 7) the
availability, cost, and prevalence of insurance
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A new tort? Negligent entrustment
Car owner
Loans car
Duty Yes!
Known, incompetent driver
Plaintiff
injures
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Vince v. Wilson (p. 188)
Aunt / Car seller
Provides money / Sells car
Duty?
Plaintiff
Driver
injures
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Reynolds v. Hicks (p. 183)
Social Host
Provides alcohol
Duty?
Plaintiff
Minor, driver
injures
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Chapter III Duty

• Duty
• Duty to protect a third party from anothers
  acts
• Special relationship to injurer
• Special relationship to victim
• Undertaking on which the other relies
• Negligent misrepresentation
• Negligent entrustment
• Breach
• Causation
• Damages

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Chapter III Duty A. Introduction

• The prima facie case in negligence
• Duty
• Duty to warn / duty to rescue
• Undertaking to provide a benefit
• Duty to protect a third party
• Landowner / occupier
• Breach
• Causation
• Damages

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Negligence Duty
Restatement (Third) of Torts Proposed Final Draft
No. 1 7. Duty (a) An actor ordinarily has a
duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm. (b) In
exceptional cases, when an articulated
countervailing principle or policy warrants
denying or limiting liability in a particular
class of cases, a court may decide that the
defendant has no duty or that the ordinary duty
of reasonable care requires modification.
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Usually --
DUTY Is there an obligation to use reasonable
care? BREACH Under the circumstances, did the
actor behave reasonably?
Question of law
General
Question of fact
Specific
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Here
As to premises liability, the particular
standard of care that society recognizes as
applicable under a given set of facts is a
question of law for the courts. Carter v.
Kinney, at p. 196
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Chapter III (D) Duty Landowners and Occupiers

• The classical, two-step approach
• When a person is injured on anothers property
  and sues the person who is in possession of the
  property
• Determine the plaintiffs status.
• Determine the precise duty that attaches to an
  entrant with that status.

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Step One Status

• Trespasser Enters without privilege or consent
  (R2dT 329)
• Licensee Enters with privilege created by
  consent or otherwise (R2dT 330)
• Invitee Two categories
• A business visitor Enters for a purpose
  directly or indirectly connected with possessors
  business.
• A public invitee Enters land open to the public
  for a particular purpose

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Step Two

• Duty owed to a licensee (R2dT 342)
• Dangerous conditions on land
• knows or has reason to know of the condition and
  should realize that it involves an unreasonable
  risk of harm
• should expect that licensee will not discover or
  realize the danger, and
• fails to exercise reasonable care to make the
  condition safe, or to warn the licensees of the
  condition and the risk involved, and
• the licensees do not know or have reason to know
  of the condition and the risk involved.

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• Duty owed to an invitee (R2dT 343)
• Dangerous condition on land
• knows or by the exercise of reasonable care
  would discover the condition
• should realize that it involves an unreasonable
  risk of harm to such invitees
• should expect that they will not discover or
  realize the danger, or will fail to protect
  themselves against it
• fails to exercise reasonable care to protect
  them against the danger.

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Step Two Duty for Dangerous Condition of Land

• Liable to invitee if
• knows or by the exercise of reasonable care
  would discover the condition
• shld realize involves an unrsble risk of harm to
  invitees
• should expect they will not discover or realize
  the danger, or will fail to protect themselves
• fails to exercise reasonable care to protect
  them against the danger.

• Liable to licensee if
• knows / reason to know of condition should
  realize it involves unrsble risk
• should expect that licensee will not discover
• licensees do not know or have reason to know of
  the condition risk
• fails to exercise rsble care to make condition
  safe, or to warn of risk

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• Critical points in the way in which the duty is
  defined for dangerous conditions
• Actual knowledge vs. duty to inspect
• Duty to warn vs. duty to make safe
• Treatment of conditions that are open and
  obvious

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• Duty owed to an invitee (R2dT 341a)
• A landowner is liable to an invitee for an
  activity on his land
• fails to carry on his activities with reasonable
  care for their safety
• should expect that they will not discover or
  realize the danger, or will fail to protect
  themselves against it.

• Duty owed to a licensee (R2dT 342)
• A landowner is liable to a licensee for an
  activity on his land if the activity is not
  carried on with reasonable care AND
• should expect licensee will not discover danger
• licensee does not have reason to know of risk

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Chapter III (D) Duty Landowners and Occupiers
When a person is injured on anothers property
and sues the person who is in possession of the
property The Rowland or Heins approach A
person in possession of land owes a duty to use
reasonable care to protect entrants onto his or
her land. Including trespassers?
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Duty owed to a trespasser (R2dT 333) With some
exceptions, a possessor of land is not liable to
trespassers for physical harm caused by his
failure to exercise reasonable care (a) to
put the land in a condition reasonably safe for
their reception, or (b) to carry on his
activities so as not to endanger them. NARROW
EXCEPTIONS 1) Child trespassers 2)
Known trespasser, limited area, harmed by
activity
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• What makes trespassers different?
• Liberty interest of landowners?
• Wrongdoers?
• Contributorily negligent by definition?
• Assume the risk, because they know there are no
  protections?

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Assignments

Tuesday 195-211 Wednesday 211-218, 229-239