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49 Cards in this Set

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T/F: There is a duty to act where there is a foreseeable risk

False - Reasons why a duty may not exist:
1. Early common law did not recognize the injury, OR
2. The public policy of the forum jurisdiction does not recognize the injury in question
WHAT DOES THAT MEAN TO DEF: he is under no legal obligation to the plf' to act with the care of a RPP and is NOT liable even if his conduct falls short of that standard of care and a person is injured as a result
General Rule Regarding Privity of Contract:

No privity of contract, there is no duty on the part of the ∆ to act as a reasonable prudent person, no matter the situation
What must exist for a duty to exist under the privity of contract principle?

There must be a legally recognized relationship.
For example, there is no duty to go to someone’s rescue even though it is plain that that person is in peril
EXCEPTION: Rules are different for the negligent infliction of emotional distress
Determination of Filing Suit in K or Tort:

How is the boundary identified in nonfeasance and misfeasance?
Nonfeasance occurs when there is only a promise and a breach, only a contract cause of action will lie and no tort COA can be maintained (If def' has done nothing he will be held to be a breach of contract). Misfeasance occurs when the def misperforms the contract and the possibility of recovery is in tort
If you are proceeding in tort on the basis of negligence, what is the first question?

Is there a duty?
If the individuals were not in privity, there may be no duty…

Winterbottom v. Wright - No recovery for tort or K w/out privity of K (there must be a duty) -- OLD RULE (rule until Macpherson v. Buick - foreseeable)
Privity of contract means?

Means that the individuals are parties to the same agreement• Overlap between contract and tort law. Fact situation in which an individual who has sustained an injury may have a cause of action in tort OR in contract.
How to plead in a privity of contract case?

Plead in the alternative.
Differences between COA's in tort and contract.

SOL: K = 4yr; tort = 2 yr
Punitive Damages: only Tort
Mental Anguish Damages: only Tort
Infancy: can only sue in tort
Statute of Frauds: some k's must follow SOF
Def's behavior: if there is an issue of contrib. negligence - should file in K
Consideration: if sufficiency is an issue; file in tort
What are the 3 Exceptions to General Privity of Contract (Winterbottom) Rule?

Exception = where no privity was required for duty to be imposed.
(1) Products that are “inherently” dangerous - E.g., Poisons, guns, explosives, drugs, and food products
(2) Defective appliances used on the owner’s premises - E.g., defective scaffolding used to unload a ship
(3) Failure to warn of a latent defect E.g., a landlord’s failure to warn a tenant that the deck railing in the tenant’s apartment is rotten and will not bear weight
Why did the 3 Exceptions to the Winterbottom Rule come about?

Society began to change with the industrial revolution.
New/Modern Rule for Privity of Contract?

No longer need privity of contract - duty arises when we have a foreseeable risk.

Macpherson v. Buick Motor Co - if there is knowledge of danger and a probability that injury will occur as a result of neglig. manufacture, there exists a duty of care to 3rd parties. FOREVER CHANGED TORTS. No more privity; most cases need foreseeable risk.
What are the two exceptions to the Macpherson v. Buick (duty arises when we have a foreseeable risk)?

1. Public Utilities - (Majority Rule) No duty w/out privity of contracts.

2. Professional Relationships (Classic Example - lawyers owe aduty to their clients that are privity in contract)
What is the exception to the privity of contract requirement for Atty/Client relationships?

3rd party ben. where the lawyer and the client have entered into an agmt for the benefit of a 3rd person.

Majority - allow 3rd party beneficiaries to recover under tort in the absence of privity of k
Minority (TX) - lawyers owe no duty to anyone the attorney-client relationship.
What is the privity of contract requirement for doctors?

Doctors will not be liable w/out privity of contract; must exist a doctor/patient relationship. Mere fact of being "on call" is not sufficient to impose a duty on the surgeon - there must be a contractual rel.
What is "Failure to Act"?

Situations in which there is no question that the plf' is in a position of peril and the def' could, with ease and without risk of harm to themselves, come to the rescue of the plf'.
What IS the (early) common law/general rule for failure to act?

There is no duty to rescue -- has caused a tremendous amt of criticism, but rule remains that if you have done nothing to place the person in the perilous position, then there is no duty to rescue.
Why is the common law/general rule for failure to act odd to cantu?

b/c early common law was written in Latin (religious based) why was there a distinct separation between common law and religious philosphy
What are the exceptions to the no duty doctrine of failure to act?

1. Public Calling (ind in control of you innkeepers)
2. Master/Servant
3. Employer/Employee (control)
4. Invitor/invitee (customer on yr prop for yr benefit)
5. Instrumentality in Proximate Control of def'
6. Husband/wife-parent/child
7. Legal Custodian/Ward
8. You placed person in peril
9. Once you begin to act, duty is imposed (when party relies on you or increasing the plfs' risk of harm by acting)
More detail on Invitor/invitee exception to no duty doctrine of failure to act.

Invitee = Customer; Invitor = Retailer; Generally considered business guests, not social guests - shoppers are classic examples - stores has a duty to protect them
When does an affirmative duty arise?

A duty to act (affirmative duty) may be imposed whenever the def assumes a responsibility to act and such undertaking INCREASES the risk of such harm or is relied upon by the plf to her detriment.
a)once you begin an act you must proceed in reasonable manner
When have you begun an act that arises into an affirmative duty?

Restatement says you have begun to act when you increase the plf's risk of harm or when the plf' relies upon your aid to her detriment (implies plf' has given up some other avenue of assistance).
Owed duty to plf' b/c of def' relationship with 3rd party.

A special relationship exists between the def and a third party and b/c of this relationship, the def owed the plf a duty to protect/rescue.
When is a duty imposed on a party b/c of the special relationship to a 3rd party?

Imposition of duty is essentially a question of fairness. Based on fairness, foreseeability of risk, public policy considerations, etc - would it be fair for the def' to protect/rescue...
Owed duty because of special relationship: husband/wife; husband is a sexual predator

Rule - When a spouse has actual knowledge or special reason to know of the likelihood of his/her spouse engaging in sexually abusive behavior against a particular person(s), that spouse has the duty of care to take reasonable steps to prevent or warn of the harm.
Why? Public policy has a low tolerance of sexual molestation and that it would only be fair to require the wife to warn
What is the holding in J.S. and M.S. v. R.T.H.?

Family sues wife b/c of breach of affirmative duty to warn them of her husband's sexual molestation of their daughter. NJ court held that she did out have a duty to warn in the interest of public safety.
Owed duty because of special relationship: parent/child;
child is negligent

TX Family Code § 41.001 - one who has the duty to control and reasonably discipline a child is liable when, by their negligence, they allow the child to be negligence, OR if child is between 12-18 and their actions are willful and malicious, the parent can be held liable.
Owed duty because of special relationship: mental health provider/patient;
patient expresses intention to bring harm to the plf


Once a therapist does in fact determine, or under applicable standards reasonably should have determined, that patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. (Tarasoff v. Regents of University of CA)
Why are mental health providers held liable?

Court stated that medical professionals could be held to that standard of care b/c they are experts in the field -- they should be able to decipher when a patient poses a serious threat.
What of confidentiality between mental health providers and their patients?

Therapists use the defense that b/c many patients make this kind of threat and that breaching their trust would end open communication.
Court's response - B/c the therapist is a professional/ expert they will have to make the judgment call and at some point the public good outweighs the element of confidentiality and they must breach it when public safety requires it.
TX and the duty of mental health providers

TX has addressed the issue legislatively: a mental health provider MAY disclose threats to the police but is not under any legal duty to do so. (TX case - son had stepfather and disclosed he was going to kill him, psychiatrist said nothing and son carried out his threat. Plf' sued and TX SC held that there was no duty to warn. The legislature had imposed the permissible duty "may warn".
Is there a duty to act when there is a foreseeable risk of some harm? (Meaning: if you do not act, you can be liable for "failure to act")

NO DUTY OR LIMITED DUTY b/c these injuries are not recognized by the common law or it is the existing public policy of the forum. There may be some other COA, BUT NOT TORT.
Pure Economic Loss:

definition, types, majority/minority rules

Def: Occurs when a person suffers pecuniary loss not consequent upon injury to his person or property (injury is purely economic).
2 Types: (1) Negligent misrep or misstatement causing economic loss; and (2) Negligent act causing economic loss
Majority: If the injury is ONLY economic then the only COA is based on K (no tort action b/c they only arise when there has been an injury to the person or property of another)
Minority (TX): If economic loss is foreseeable, there is a duty
Negligent Infliction of Emotional Distress:

difference btwn Intentional Infliction of Emotion Distress

IIED - to recover the def's conduct had to be:
1. intentional
2. extreme & outrageous
3. causal connection btwn def's behavior and resulting mental anguish; AND
4. the alleged mental anguish of the plf' had to be severe

NIED requires all elements of actionable negligence - duty, breach, causation, injury
Definition of Mental Anguish

Mental anguish is a physical injury limited to the mind of the plf' and as a result of the injury the plf' can no longer perform the daily functions of life that they could perform w/ease before the alleged injury

(legal community is indebted to medical community for recognition of the tort, once medicine proved the existence of mental anguish, the law began to change)
Negligent Infliction of Emotional Distress:
History: Phase I

Until 1888:
Impact Rule - could recover under NIED if there was a concurrent injury to plfs' body (Impact would convince court that if the body was injured, the mind could be as well)
3 EXCEPTIONS: (1)Neg. handling of dead bodies (2) Neg. transmitted messages concerning death (agst telegraph co.) (3) Zone of Danger - if plf' came "so close" to impact that there was no question that there is mental anguish w/out physical harm
Negligent Infliction of Emotional Distress:
History: Part II

Medical profession advanced and found that mental anguish could exist w/out impact. Legal profession requires that there is some sort of physical manifestation of the injury to the mind (physical impairment = physical injury)
Negligent Infliction of Emotional Distress:
History: Phase III

Modern/Majority Rule: medical profession convinces that not all individuals suffer the same way and some might not exhibit a physical manifestation.

Question of fact for the jury: "Is the alleged mental anguish rule"

Reqs: (1) Mental anguish must have been foreseeable & (2) the reaction by the plf' must be reasonable - we do NOT take plf' as we find them b/c not intentional
What is the cornerstone of actionable negligence?

Foreseeability of risk. Impose a duty to act as an RPPLSC; AND revised when establishing proximate cause.
Negligent Infliction of Emotional Distress:

Majority Rule

Question of fact for the jury whether or not the plf' has sustained mental distress.
(1) Mental anguish must have been foreseeable & (2) the reaction by the plf' must be reasonable
Negligent Infliction of Emotional Distress:

Minority (TX) Rule

For plf' to recover, plf' must allege first that some other duty was owed to and that had been breached. Then AND ONLY then can plf' attach a claim for NEID. This is a Parasitic COA. (Kerr v. Boyles - def secretly videotaped himself having sex w/plf and showed it to everyone causing severe distress in plf'; SC overruled other cases when it said "in order to recover for NEID, the plf' would be compensated only if that tort occurred in connection w/the def's breach of some other duty" - IT IS A TORT, just a dependent tort.
Negligent Infliction of Emotional Distress & Third Parties:


1968 - Dillon v. Legg - plf witnessed car running over her child, court held that "a 3rd party could recover if the mental anguish was foreseeable" - UNIQUE b/c mental anguish results not from an injury to your body, but b/c of injury to another
Negligent Infliction of Emotional Distress & Third Parties:

What constitutes foreseeability of mental anguish?

1. Plf' is present at the scene of the injury-producing event at the time it occurs and is then aware that its causing injury to the victim; and
2. Is closely related to the victim (family member - fact); and
3. The shock from direct emotional impact - you have to hear it, watch it, smell it - as a result suffers serious emotional distress - a reaction beyond that which would be anticipated in a disinterested witness and which is NOT an abnormal response to the circumstances.
Negligent Infliction of Emotional Distress & Third Parties:

Limitation Case

Thing v. La Chusa - Mother is nearby, but doesn't see/hear her child get hit by car, but does see her blood and unconscious and thinks he is dead. SC denied her recovery to avoid limitless liability
Duty to Unborn Children:

Early Common Law Rule, Development of the law

Early Common Law: the fetus did not exist as a person and thus had no rights.
WHY? (1)Could not distinguish existence of a fetus from the mother. (2) It was too difficult to prove causation if the fetus was injured or allegedly injured (3) damages to speculative (4) mother and father have always been permitted to recover for their loss of consortium

Development: Law has evolved in direct correlation w/advs in medicine.
Duty to Unborn Children:

Majority Rule

Injury must have occurred at fetus viability and be birthed (alive).
Duty to Unborn Children:

Majority Rule - Case

Endresz v. Friedberg - 7 mos preggers mom got in a car wreck and delivered twins still born a week later. No recovery b/c they were not born (law has not allowed existence for no birth b/c w/out birth there is no life, without life, there is no identity, without identity, there is no COA)
Duty to Unborn Children:

Minority Rule (TX - last to adopt majority in 1967 & then revised to minority in 1971)

Injury can have occurred at any prenatal state and be birthed.
Wrongful Life

Rule (No majority recognizes wrongful life COA's)

An infant plf' may recover as special damages for the extraordinary medical expenses attributable to his affliction, but he may not recover general damages for emotional distress or for an impaired childhood.
1. Roots from Roe v. Wade - Child alleges that given his disabilities, he should never have been born. (Procanik)

History - initially could not recover for wrongful life or wrongful birth; law changed to wrongful birth and finally CHILD could recover special damages for extraordinary medical expenses related to life - ALL NJ CASES
Wrongful Life

TX Rule

Child could recover the expenses REASONABLY necessary for the care and treatment of their child's physical/mental impairments but the child could not recover at all.