Limited Duty & Liability: NIED, Failure 2 Act, Privity of K, Owners & Occupiers of Land

Limited Duty & Limited Liab.

  1. Charact's
    1. Neg. Concept
      1. Focus on if duty exists not on def'ing what duty is
      2. Limited liab. & duty or no liab. whether behav. unrsbl b/c no duty 2 behav rsbly

Neg. Infliction of Emotional Disturbance (NIED)

  1. Charact's
    1. Mental disturbance & resulting injury
    2. Neg. which results in fright, shock, mental & / phys.
    3. Reluctance 2 allow this C/A
  2. Dir V v. Bystander Doc's Disting'ed
  3. Dir. V Doc's 4 Recov. on NIED
    1. Impact Theory
      1. If P suffers imm. phys. injury then can recov. emotional damage
      2. Rsns 4 impact
        1. Genuineness
        2. Lwr flood of litigations
        3. Policy rsns of IIED except deeper
      3. Rsns against impact
        1. Cases w/distress w/o impact
        2. Artificial line 4 genuine v. fraud
    2. Parasitic Damage
      1. Emotional distress after hit by debris then can recov.
    3. Phys. Manifestation: Def. & Obj. Phys. Injury Prox. of D's Cond. (Daley v. LaCroix)
      1. Distinct from impact rule b/c not need dir. phys. injury
      2. Gen'ly 2 B obj., need nervous disorder w/a name & shock may B phys. injury so hard 2 det.
      3. Can recov. 4 emotional distress w/reqt's met
        1. Rxn of distress is normal
        2. Phys. harm is nat. conseq. of distress
        3. Event -->normal-->distress-->nat.-->phys. injury
      4. Distinct from thin skull doc.
        1. Thin skull def's liab. like a damage b/c says if resp. 4 bump, then resp. 4 crack
        2. But here talk about if any liab. exists, & if any, then go 2 thin skull
      5. Most states keep this reqt w/2 exceptions
        1. Neg. transmission of death by telegram
        2. Neg. holding of hoax
  4. Bystander Doc's 4 Recov. in NIED
    1. Zone of Dang. Doc.
      1. If almost impact so rsbl fear of safety (ex. of pedestrian almost struck)
      2. Policy of limiting liab. so like prox. cause policy 2 cut liab. off @ some pt.
      3. Most jxn's use this
    2. Dillon v. Legg Stand.
      1. Recov. if D should rsbly foresee emotional harm 2 P & factors of
        1. P located near the scene
        2. Contemporaneous sensory so shock from dir. emotional impact on P
        3. P & V (victim) R closely rel'ed
      2. Ct's confused on whether if missing 3 factors, can still recov. by rsbl foresee & Thing Case said stand. strictly applied so no arb. limit on recov.
    3. Thing v. La Chusa Stand.
      1. Liberal stand. & guideline set out in Dillon v. Legg
        1. Closely rel'ed / rel. of same household 4 P's so only allow siblings, parents, grandparents, & children 4 recov.
        2. There & aware so takes 2 prongs of Dillon into 1
        3. Result is suffered SERIOUS emotional distress that is more than disint'ed person & isn't abnormal response
      2. Strictly Applied Stand.
        1. Must meet 3 criteria w/o foreseeability
      3. No Thin Skull Doc.
        1. If abnormal can't recov. but must suffer more than normal bystander
      4. Policy 4 Limits
        1. Must draw the line somewhere 2 target the needy, not the greedy
        2. Need cert. so low litig. & high settlement
        3. Emotional distress is part of life so shouldn't B in ct.
  5. Cases 4 Def'ing Dir. V & Bystander Class of P's
    1. Molien Case (P's wife misdianosed)
      1. Liab. by dir. harm 2 P not bystander & foreseeability so case by case
      2. Ct's confused after this case
    2. Marlen F Case (sexual molest of boy & mom sued)
      1. Recov. when treat both so duty 2 both
        1. Rsbly foreseeable NIED by molesting son so dir. & foreseeable V
      2. Molien Clarified
        1. Strict stand.
        2. Dir. not foreseeable
        3. W/o mtng Dillong / Thing stand., can't recov. by foreseeable alone when Dir. V
      3. Ways 2 B Dir V So Circumvent Thing Test
        1. Damages arise from professional rel.
        2. Breach of duty assumed by D
        3. Duty imposed on D as matter of law
        4. Not really clear what the aboved reqt's R
    3. Burgess v. Superior Ct (child brain damaged @ birth)
      1. Mtng Dir V Reqt's
        1. Ps patient & arose out of prof. rel. so no Thing stand.\
        2. Pre-existing duty of care from Dr.-patient
      2. Bystander P Class
        1. Limit distress by D's neg. cond. whom P has no pre-existing rel.
        2. D not previously assumed duty of care beyond that owed 2 pub. in gen.
        3. This P class can B infinite, limit by Thing Test if P has no duty of care/pre-exist rel.
        4. Underlying policy is thus far & no further
  6. CA Jxn
    1. Allow Recov.
      1. Impact & zone of dang. probably o.k. though ct. didn't say
      2. Not need phys. conseq's
      3. Bystander & Thing Test
      4. Dir V & pre-existing rel.
    2. Huggins v. Longs Drug Stores (pharmacist neg'ly wrote prescription & child overdosed)
      1. Not Bystander
        1. Failed Thing's there & aware
      2. No Dir V
        1. Baby's the only patient so drew line but maybe phys. harm w/disabling effect a better line
        2. Duty 2 baby by statute not 2 parents
      3. P's Foreseeability Arg. Fails
        1. Arg'ed dif. when participated in injury so foreseeable as unwitting agent
        2. But line not by foreseeability 2 limit liab.
      4. Didn't want a lot of NIED / IIED cases so dec'ed this way 2 limit potential P's
      5. Montana had dif. approach of giving 2 jury but Montana has smaller pop.

Failure 2 Act

  1. Failure 2 Act v. Omission
    1. Ommission is neg. behav. of not doing something as in not brake
    2. Failure 2 act is aff. should've done something
  2. No Duty on Bystander 2 Act / Rescue
    1. Nonfeasance: Not Doing Anything & No Liab.
    2. No Gen. Duty 2 Rescue Somebody in Peril Even if Unrsbl so No Liab.
      1. Gen'ly not malicious in inaxn b/c scared / thinks somebody else better placed
    3. Policy Rsn
      1. Prob. of line drawing of unselfish stand. of when, how much risk, & cost of rescue
      2. Respect indiv. freedom
    4. What Stand. Should/Could B
      1. Enact statute 2 impose duties on bystander
      2. No duty if endangers own life by helping so limit liab.
      3. Still prob. in judging subj. stand. like imp. pers. duty v. peril
      4. Not liab. if neg. but if reckless, may B by statute
      5. Not req. rsbl 2 rescue b/c jury will differ on what that means
      6. When rescue, higher gap of error b/c like emergency
      7. If change stand. 4 nonfeasance, probably would need 2 change 4 misfeasance
  3. Exception 2 No Duty 2 Rescue (Ayres v. Hicks)
    1. Rel's Giving Rise 2 Duty
      1. Invitor / invitee where busi. open 2 pub. (store/customer)
      2. Instrumentality where prov'ed & rendered control by D
      3. Spec. Rel. & may B other rel's
        1. Employer (er) / employee (ee)
        2. Shipmaster seaman / passenger
        3. Inkeeper / guest
        4. Temp. custodian / charge
        5. Carrier / passenger
    2. Rsns 4 Exception in Rel's
      1. Dependence in rel's
      2. Control over person's sit.
      3. Rel. & cnxn but not all have cnxn
    3. Duty 2 Aid If Injure Another
      1. If injury b/c of neg. then liab. 4 failing 2 ad
      2. Liab. 4 initial damage + aggravated damage b/c prox'ly caused all damages
      3. Gen'ly not reach a sit. of duty 2 rescue b/c liab. 4 all prox. cause damage anyway
      4. If injury b/c of nontortious then still duty 2 rescue b/c control the sit. & heightened morality of fixing prob. when 1 created it
    4. Misfeasance Liab.
      1. If rescue badly/unrsbl job then liab.
      2. Discourage neg. rescuer b/c make things worse off
      3. Rest. Limit Circ's 4 Misfesance Liab.
        1. Leaves P in worse sit.
        2. Increase P's risk
        3. Deprive of other aid
        4. Harm suffered b/c P relied on D's undertaking
        5. There may B other sit's
      4. Can't put person back in = peril once removed
        1. Morality & inapprop. behav. 2 do that even though P not in worse sit.
  4. C/L's Rescue on Both Liab. & Recov. Doc's
    1. Rescue Doc. where injured rescuer can recov. unless reckless
    2. Misfeasance discourage bad rescue
  5. Good Samaritan Laws
    1. Passed by most states so Dr's won't refuse aid b/c of malpractice
  6. Prom. 2 Act Then Subj. 2 Act W/Due Care (Crowley v. Spivey & Thorne v. Deas)
    1. Disting. from K Cases
      1. Reliance on prom. 2 P's detriment
      2. AND phys. injury
    2. If no reqt's tort cases would swallow up all K law
  7. Duty 2 Control 3rd Person
    1. Two Type of D's
      1. D has spec. rel. w/P
      2. D has spec. rel. w/person who hurt P
    2. Parent -Child Rel. Then Liab. (Linder v. Bidner)
      1. If a parent knows / rsn 2 know
      2. Has the ability 2 control the child
      3. Opp. 2 exercise / nec. 2 control
      4. Prob. of Proof
        1. Must prove ability 2 control
        2. Prob. showing opp. 2 control even if nec. 2 control
        3. Must show dang. habit of specif. kind not just gen. disposition
    3. Psychiatrist / Dr's Duty (Tarasoff v. Regents of UC)
      1. Immunity 2 psychiatrist so no liab. 2 release mentally ill by CA govt code that no pub. entity liab. 4 confinement / grant leave
      2. Failure 2 Warn: No duty 2 control unless spec. rel.
        1. Foreseeable V like imm. family members
        2. Patient
        3. Must warn patients & warn those harmed by patients
      3. Prob of duty 2 warn foreseeable V's
        1. Hard 2 predict in psychiatry when 2 warn b/c even w/rsbl stand. of warning, not know if part. person will do it
        2. Overwarning has prob's of ineffective treatment, affecting warned people, etc.
      4. CA Leg.
        1. Communicate serious threat against rsbly id'able V's
        2. Discharged of duty if rsbl effort 2 communicate the threat 2 V & police
        3. Still prob's of avoiding info, overwarning, & concerned about law not best treatment
      5. Outcome of Duty 2 Warn
        1. Ins. cost 2 high so therapy not available
        2. Most priv. refused 2 treat dang. people & pub. not have enough skill
        3. Informed consent req. 2 tell patients of Tarasoff Case so warned not 2 disc. dang. stuff so never find dang.

Privity of K's

  1. Nonfeasance & Misfeasance W/Prom's
    1. Nonfeasance: Make Prom. & Break
      1. Gen'ly remedy in K law
    2. Misfeasance: Make Prom. & Do Badly
      1. More recov. in torts
  2. No Privity of K So No Liab. (Winterbottm v. Wright)
    1. Old C/L View
      1. Seller of chattel not liab. 2 anybody except imm. buyer
      2. Duty arises out of agmt 2 do something
    2. Abolished by McPherson Case & prod. liab.
  3. Privity Must Exist When Oblgn Only In Agmt (Moch Co. v. Rensselaer Water Co.)
    1. No liab. if D not aff'ly do harm & failed 2 become the instrument 4 the good
    2. Ex. of D didn't affly cause fire but didn't help prevent fire, no liab.
    3. Look 4 Causation
      1. Prob's b/c lack predictability w/o bright line rule
  4. Narrow 3rd Party Benefic. Category (Clagett v. Dacy)
    1. Def. of 3rd Party Benefic.
      1. K btwn A & B giving benefit 2 C so can sue but rare that outsider 2 trxn is benefic.
    2. Exception 4 Benefic. of Will
  5. No Recov. 4 Econ Loss W/O Phys Damage (State of Louisiana ex rel. Guste v. M/V Testbank)
    1. Maj. Rule: Bright Line Rule Justifications
      1. Liab. extend 2 far if allow pure econ. loss w/o phys. damage
      2. Pragmatic 2 limit where phys. conseq's like prox. cause of neg.
      3. Bright line rule good where benefit of predictability high instead of going case by case
      4. First party ins. 4 econ. loss lwr than 3rd party ins. b/c not det. who's @ fault but prob. b/c may want people causing trouble 2 pay & want more pain & suffering from 3rd party ins.
      5. Bright line rule unfair @ the margin but worth it if take all into consid.

Owners & Occupiers of Land

  1. Spec. Duty Rule in Favor of Owners & Occupiers
  2. Liab. of Poss'r of Land 4 Those ON Land, Not OUTSIDE the Land
    1. Classification
      1. Trespasser
      2. Licensee
      3. Invitee
    2. Trespasser
      1. Enters / remains on land in poss'n of another w/o permission
      2. Duty 2 this class the lowest w/gen'ly no duty of rsbl care b/c wrongfully on premise but some exceptions
      3. Freq. Trespasser
        1. Tolerated when know / should know b/c constantly intrude on limited premise
        2. Know where they go & likelihood of harm higher so some rsbl care
          1. Active operation creating risk of harm then rsbl duty
          2. Dang. conditions, duty 2 warn rsbly b/c trespasser won't discov.
      4. Discov'ed Trespasser Literally
        1. Active operation: warning / manner of conducting, owe rsbl duty of care w/whatever U R operating
        2. Conditions on land: rsbl care 2 warn of known dang's if prox. & if poss'r rsn 2 believe trespasser won't know
    3. Licensee
      1. On land w/consent 4 own purpose not 4 owners (shortcut takers)
        1. Incl's solicitors, fam. members, soc. guests
        2. Residual b/c not trespasser & not invitee in this category
      2. Higher duty than trespasser
        1. Active Operation: duty of rsbl care affected by the likelihood of presence of licensee b/c foreseeable b/c granted permission
        2. Cond's on Land: No duty of rsbl care but trap exception where licensee entitled 2 B warned of concealed dang. cond's which poss'r has actual knowledge & licensee unaware/unlikely 2 discov.
        3. No constructive knowledge implied by maj. even though Rest. says do imply
    4. Invitee
      1. Invited 2 remain 4 part. purposes gen'ly 4 busi. dealing
        1. Ex's of customers, ee's
        2. Pub. invitees where invited 2 enter & remain as member of pub. 4 purpose the land held open 2 pub. which incl's all the people incl'ing phone use, etc.
      2. Owe Highest Duty
        1. Duty of rsbl care but not guarnatee safety
        2. Active operation: rsbl care
        3. Cond's of premise: hold poss'r liab. if not rsbl cond's of premise & incl. oblgn 2 warn which may not B the only duty
  3. CA Jxn (Rowland v. Christian)
    1. Rsbl Care Regardless of Categories
      1. Ord. neg. & rsbl care of premise w/o trap exception 4 licensee
      2. This stand. adopted b/c factors relev. 2 det. liab. has little relativity w/categories
      3. Factors
        1. Closeness
        2. Moral blame on D's cond.
        3. Goal 2 prevent future harm
        4. Ins. prevalent
        5. Foreseeabiltiy 2 harm rel'ed in cert. category & cert. of injury factors may / not B relev.
      4. Ct. also said people not change beahv. 4 classification of visitor but prob. b/c do behav. dif'ly
      5. Status of visitor (trespasser v. licensee v. invitee) still relev. & imp. but not the only dispositive factor 4 liab.
    2. Invitee v. Licensee Div. Arg's
      1. Discard b/c both invited & seem arb.
      2. Keep b/c not want 2 encourage liab. 4 soc. guests
      3. Pract. concern 2 keep b/c lots of licensees & want 2 limit liab. 4 homeowners of soc. guest's injury
    3. Licensee v. Trespasser Div. Arg's
      1. Want crim. line maybe
      2. Keep b/c not want 2 care 4 people U don't know & ez'er 4 ct's
    4. No Bright Line Rule: Make People Settle & Some Meritorious Cases Will B Lost
    5. Some jxns reject invitee v. licensee but most keep licensee v. trespasser
  4. Lessors Not Liab. 4 Ten's / 3rd Persons
    1. Charact's
      1. When leased, T / 3rd person poss's & occupies but lessor owns
    2. Gen. Rule of Lessor Not Liab.
      1. Not liab. 4 T & 3rd persons b/c would incr. rent by imposing duty
      2. But lessors liab. in hotel, renting house, / high resp. 2 take care of U
    3. Border v. Roseberry Exception (common area)
      1. If lawfully on premise then rsbl care 2 lessor but not guarantors
    4. Pagelsdorf Case Min. Stand.
      1. Rsbl care 2 lessor when lawfully on premise & K, not a conveyance
        1. Notice of defect
        2. Obvious
        3. Control
      2. Not picked up subst. following
    5. Kline v. 1500 Mass. Ave. Apt Corp (common hallway assault)
      1. Lessor Liab. When Excl. Pwr 2 Remedy & Min. Predictable Risk
        1. Analogized 2 defective rug 2 impose duty
      2. Stand.: Rsbl Precautions
        1. Same degree of security when she moved in but contradictory b/c if another T moved in after doorman out, then stand. of duty dif. 4 dif. T's
        2. Locked door w/buzzer may not B enough but doorman might cost more so higher rent
      3. Prob's
        1. Although theoretical control over common area, L can fix rugs ez'er
        2. Vague so unclear on duty 2 protect people against crime


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