Limited Duty & Liability: NIED, Failure 2 Act, Privity
of K, Owners & Occupiers of Land
Limited Duty & Limited Liab.
- Neg. Concept
- Focus on if duty exists not on def'ing what duty is
- Limited liab. & duty or no liab. whether behav. unrsbl
b/c no duty 2 behav rsbly
Neg. Infliction of Emotional Disturbance (NIED)
- Mental disturbance & resulting injury
- Neg. which results in fright, shock, mental & / phys.
- Reluctance 2 allow this C/A
- Dir V v. Bystander Doc's Disting'ed
- Dir. V Doc's 4 Recov. on NIED
- Impact Theory
- If P suffers imm. phys. injury then can recov. emotional damage
- Rsns 4 impact
- Lwr flood of litigations
- Policy rsns of IIED except deeper
- Rsns against impact
- Cases w/distress w/o impact
- Artificial line 4 genuine v. fraud
- Parasitic Damage
- Emotional distress after hit by debris then can recov.
- Phys. Manifestation: Def. & Obj. Phys. Injury
Prox. of D's Cond. (Daley v. LaCroix)
- Distinct from impact rule b/c not need dir. phys. injury
- Gen'ly 2 B obj., need nervous disorder w/a name & shock
may B phys. injury so hard 2 det.
- Can recov. 4 emotional distress w/reqt's met
- Rxn of distress is normal
- Phys. harm is nat. conseq. of distress
- Event -->normal-->distress-->nat.-->phys. injury
- Distinct from thin skull doc.
- Thin skull def's liab. like a damage b/c says if resp. 4 bump,
then resp. 4 crack
- But here talk about if any liab. exists, & if any, then
go 2 thin skull
- Most states keep this reqt w/2 exceptions
- Neg. transmission of death by telegram
- Neg. holding of hoax
- Bystander Doc's 4 Recov. in NIED
- Zone of Dang. Doc.
- If almost impact so rsbl fear of safety (ex. of pedestrian
- Policy of limiting liab. so like prox. cause policy 2 cut
liab. off @ some pt.
- Most jxn's use this
- Dillon v. Legg Stand.
- Recov. if D should rsbly foresee emotional harm 2 P &
- P located near the scene
- Contemporaneous sensory so shock from dir. emotional impact
- P & V (victim) R closely rel'ed
- 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.
- Thing v. La Chusa Stand.
- Liberal stand. & guideline set out in Dillon v. Legg
- Closely rel'ed / rel. of same household 4 P's so only allow
siblings, parents, grandparents, & children 4 recov.
- There & aware so takes 2 prongs of Dillon into 1
- Result is suffered SERIOUS emotional distress that is more
than disint'ed person & isn't abnormal response
- Strictly Applied Stand.
- Must meet 3 criteria w/o foreseeability
- No Thin Skull Doc.
- If abnormal can't recov. but must suffer more than normal
- Policy 4 Limits
- Must draw the line somewhere 2 target the needy, not the greedy
- Need cert. so low litig. & high settlement
- Emotional distress is part of life so shouldn't B in ct.
- Cases 4 Def'ing Dir. V & Bystander Class of P's
- Molien Case (P's wife misdianosed)
- Liab. by dir. harm 2 P not bystander & foreseeability
so case by case
- Ct's confused after this case
- Marlen F Case (sexual molest of boy & mom
- Recov. when treat both so duty 2 both
- Rsbly foreseeable NIED by molesting son so dir. & foreseeable
- Molien Clarified
- Strict stand.
- Dir. not foreseeable
- W/o mtng Dillong / Thing stand., can't recov. by foreseeable
alone when Dir. V
- Ways 2 B Dir V So Circumvent Thing Test
- Damages arise from professional rel.
- Breach of duty assumed by D
- Duty imposed on D as matter of law
- Not really clear what the aboved reqt's R
- Burgess v. Superior Ct (child brain damaged
- Mtng Dir V Reqt's
- Ps patient & arose out of prof. rel. so no Thing stand.\
- Pre-existing duty of care from Dr.-patient
- Bystander P Class
- Limit distress by D's neg. cond. whom P has no pre-existing
- D not previously assumed duty of care beyond that owed 2 pub.
- This P class can B infinite, limit by Thing Test if P has
no duty of care/pre-exist rel.
- Underlying policy is thus far & no further
- CA Jxn
- Allow Recov.
- Impact & zone of dang. probably o.k. though ct. didn't
- Not need phys. conseq's
- Bystander & Thing Test
- Dir V & pre-existing rel.
- Huggins v. Longs Drug Stores (pharmacist neg'ly
wrote prescription & child overdosed)
- Not Bystander
- Failed Thing's there & aware
- No Dir V
- Baby's the only patient so drew line but maybe phys. harm
w/disabling effect a better line
- Duty 2 baby by statute not 2 parents
- P's Foreseeability Arg. Fails
- Arg'ed dif. when participated in injury so foreseeable as
- But line not by foreseeability 2 limit liab.
- Didn't want a lot of NIED / IIED cases so dec'ed this way
2 limit potential P's
- Montana had dif. approach of giving 2 jury but Montana has
Failure 2 Act
- Failure 2 Act v. Omission
- Ommission is neg. behav. of not doing something as in not
- Failure 2 act is aff. should've done something
- No Duty on Bystander 2 Act / Rescue
- Nonfeasance: Not Doing Anything & No Liab.
- No Gen. Duty 2 Rescue Somebody in Peril Even if Unrsbl so
- Gen'ly not malicious in inaxn b/c scared / thinks somebody
else better placed
- Policy Rsn
- Prob. of line drawing of unselfish stand. of when, how much
risk, & cost of rescue
- Respect indiv. freedom
- What Stand. Should/Could B
- Enact statute 2 impose duties on bystander
- No duty if endangers own life by helping so limit liab.
- Still prob. in judging subj. stand. like imp. pers. duty v.
- Not liab. if neg. but if reckless, may B by statute
- Not req. rsbl 2 rescue b/c jury will differ on what that means
- When rescue, higher gap of error b/c like emergency
- If change stand. 4 nonfeasance, probably would need 2 change
- Exception 2 No Duty 2 Rescue (Ayres v. Hicks)
- Rel's Giving Rise 2 Duty
- Invitor / invitee where busi. open 2 pub. (store/customer)
- Instrumentality where prov'ed & rendered control by D
- Spec. Rel. & may B other rel's
- Employer (er) / employee (ee)
- Shipmaster seaman / passenger
- Inkeeper / guest
- Temp. custodian / charge
- Carrier / passenger
- Rsns 4 Exception in Rel's
- Dependence in rel's
- Control over person's sit.
- Rel. & cnxn but not all have cnxn
- Duty 2 Aid If Injure Another
- If injury b/c of neg. then liab. 4 failing 2 ad
- Liab. 4 initial damage + aggravated damage b/c prox'ly caused
- Gen'ly not reach a sit. of duty 2 rescue b/c liab. 4 all prox.
cause damage anyway
- 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
- Misfeasance Liab.
- If rescue badly/unrsbl job then liab.
- Discourage neg. rescuer b/c make things worse off
- Rest. Limit Circ's 4 Misfesance Liab.
- Leaves P in worse sit.
- Increase P's risk
- Deprive of other aid
- Harm suffered b/c P relied on D's undertaking
- There may B other sit's
- Can't put person back in = peril once removed
- Morality & inapprop. behav. 2 do that even though P not
in worse sit.
- C/L's Rescue on Both Liab. & Recov. Doc's
- Rescue Doc. where injured rescuer can recov. unless reckless
- Misfeasance discourage bad rescue
- Good Samaritan Laws
- Passed by most states so Dr's won't refuse aid b/c of malpractice
- Prom. 2 Act Then Subj. 2 Act W/Due Care (Crowley
v. Spivey & Thorne v. Deas)
- Disting. from K Cases
- Reliance on prom. 2 P's detriment
- AND phys. injury
- If no reqt's tort cases would swallow up all K law
- Duty 2 Control 3rd Person
- Two Type of D's
- D has spec. rel. w/P
- D has spec. rel. w/person who hurt P
- Parent -Child Rel. Then Liab. (Linder v. Bidner)
- If a parent knows / rsn 2 know
- Has the ability 2 control the child
- Opp. 2 exercise / nec. 2 control
- Prob. of Proof
- Must prove ability 2 control
- Prob. showing opp. 2 control even if nec. 2 control
- Must show dang. habit of specif. kind not just gen. disposition
- Psychiatrist / Dr's Duty (Tarasoff v. Regents
- Immunity 2 psychiatrist so no liab. 2 release mentally ill
by CA govt code that no pub. entity liab. 4 confinement / grant
- Failure 2 Warn: No duty 2 control unless spec. rel.
- Foreseeable V like imm. family members
- Must warn patients & warn those harmed by patients
- Prob of duty 2 warn foreseeable V's
- Hard 2 predict in psychiatry when 2 warn b/c even w/rsbl stand.
of warning, not know if part. person will do it
- Overwarning has prob's of ineffective treatment, affecting
warned people, etc.
- CA Leg.
- Communicate serious threat against rsbly id'able V's
- Discharged of duty if rsbl effort 2 communicate the threat
2 V & police
- Still prob's of avoiding info, overwarning, & concerned
about law not best treatment
- Outcome of Duty 2 Warn
- Ins. cost 2 high so therapy not available
- Most priv. refused 2 treat dang. people & pub. not have
- Informed consent req. 2 tell patients of Tarasoff Case so
warned not 2 disc. dang. stuff so never find dang.
Privity of K's
- Nonfeasance & Misfeasance W/Prom's
- Nonfeasance: Make Prom. & Break
- Gen'ly remedy in K law
- Misfeasance: Make Prom. & Do Badly
- More recov. in torts
- No Privity of K So No Liab. (Winterbottm v. Wright)
- Old C/L View
- Seller of chattel not liab. 2 anybody except imm. buyer
- Duty arises out of agmt 2 do something
- Abolished by McPherson Case & prod. liab.
- Privity Must Exist When Oblgn Only In Agmt (Moch
Co. v. Rensselaer Water Co.)
- No liab. if D not aff'ly do harm & failed 2 become the
instrument 4 the good
- Ex. of D didn't affly cause fire but didn't help prevent fire,
- Look 4 Causation
- Prob's b/c lack predictability w/o bright line rule
- Narrow 3rd Party Benefic. Category (Clagett
- Def. of 3rd Party Benefic.
- K btwn A & B giving benefit 2 C so can sue but rare that
outsider 2 trxn is benefic.
- Exception 4 Benefic. of Will
- No Recov. 4 Econ Loss W/O Phys Damage (State of Louisiana
ex rel. Guste v. M/V Testbank)
- Maj. Rule: Bright Line Rule Justifications
- Liab. extend 2 far if allow pure econ. loss w/o phys. damage
- Pragmatic 2 limit where phys. conseq's like prox. cause of
- Bright line rule good where benefit of predictability high
instead of going case by case
- 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.
- Bright line rule unfair @ the margin but worth it if take
all into consid.
Owners & Occupiers of Land
- Spec. Duty Rule in Favor of Owners & Occupiers
- Liab. of Poss'r of Land 4 Those ON Land, Not
OUTSIDE the Land
- Enters / remains on land in poss'n of another w/o permission
- Duty 2 this class the lowest w/gen'ly no duty of rsbl care
b/c wrongfully on premise but some exceptions
- Freq. Trespasser
- Tolerated when know / should know b/c constantly intrude on
- Know where they go & likelihood of harm higher so some
- Active operation creating risk of harm then rsbl duty
- Dang. conditions, duty 2 warn rsbly b/c trespasser won't discov.
- Discov'ed Trespasser Literally
- Active operation: warning / manner of conducting, owe rsbl
duty of care w/whatever U R operating
- Conditions on land: rsbl care 2 warn of known dang's if prox.
& if poss'r rsn 2 believe trespasser won't know
- On land w/consent 4 own purpose not 4 owners (shortcut takers)
- Incl's solicitors, fam. members, soc. guests
- Residual b/c not trespasser & not invitee in this category
- Higher duty than trespasser
- Active Operation: duty of rsbl care affected by the likelihood
of presence of licensee b/c foreseeable b/c granted permission
- 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.
- No constructive knowledge implied by maj. even though Rest.
says do imply
- Invited 2 remain 4 part. purposes gen'ly 4 busi. dealing
- Ex's of customers, ee's
- 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.
- Owe Highest Duty
- Duty of rsbl care but not guarnatee safety
- Active operation: rsbl care
- 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
- CA Jxn (Rowland v. Christian)
- Rsbl Care Regardless of Categories
- Ord. neg. & rsbl care of premise w/o trap exception 4
- This stand. adopted b/c factors relev. 2 det. liab. has little
- Moral blame on D's cond.
- Goal 2 prevent future harm
- Ins. prevalent
- Foreseeabiltiy 2 harm rel'ed in cert. category & cert.
of injury factors may / not B relev.
- Ct. also said people not change beahv. 4 classification of
visitor but prob. b/c do behav. dif'ly
- Status of visitor (trespasser v. licensee v. invitee) still
relev. & imp. but not the only dispositive factor 4 liab.
- Invitee v. Licensee Div. Arg's
- Discard b/c both invited & seem arb.
- Keep b/c not want 2 encourage liab. 4 soc. guests
- Pract. concern 2 keep b/c lots of licensees & want 2 limit
liab. 4 homeowners of soc. guest's injury
- Licensee v. Trespasser Div. Arg's
- Want crim. line maybe
- Keep b/c not want 2 care 4 people U don't know & ez'er
- No Bright Line Rule: Make People Settle & Some Meritorious
Cases Will B Lost
- Some jxns reject invitee v. licensee but most keep licensee
- Lessors Not Liab. 4 Ten's / 3rd Persons
- When leased, T / 3rd person poss's & occupies but lessor
- Gen. Rule of Lessor Not Liab.
- Not liab. 4 T & 3rd persons b/c would incr. rent by imposing
- But lessors liab. in hotel, renting house, / high resp. 2
take care of U
- Border v. Roseberry Exception (common area)
- If lawfully on premise then rsbl care 2 lessor but not guarantors
- Pagelsdorf Case Min. Stand.
- Rsbl care 2 lessor when lawfully on premise & K, not a
- Notice of defect
- Not picked up subst. following
- Kline v. 1500 Mass. Ave. Apt Corp (common hallway
- Lessor Liab. When Excl. Pwr 2 Remedy & Min. Predictable
- Analogized 2 defective rug 2 impose duty
- Stand.: Rsbl Precautions
- 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
- Locked door w/buzzer may not B enough but doorman might cost
more so higher rent
- Although theoretical control over common area, L can fix rugs
- Vague so unclear on duty 2 protect people against crime
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