Anglo-American Contract and Torts Prof. Mark P. Gergen Class Two

1. Anglo-AmericanContract and TortsProf. Mark P. GergenClass Two Negligence—duty of care

2. The negligence action Text 16 (Lundmark) Duty Breach Injury [Proximate] Causation Damages Restatement Third, Torts (2011) Duty Breach Factual cause Legal cause/scope of liability Damages Lundmark improves on the Restatement by addressing pure economic and emotional loss under the topic of injury (pp. 63-68). In the US these are treated as problems of duty. The Restatement improves on Lundmark by separating the issues of factual and legal cause.

3. Duty/Injury Breach Factual cause Legal cause/scope of liability Damages Proximate cause Duty of reasonable care. Breach: was the defendant’s conduct unreasonable? Cause in fact: was the plaintiff harmed by the defendant’s failure to act reasonably? Scope of liability/legal cause: is the harm among the risks that made the defendant’s conduct unreasonable? Injury: was the plaintiff physically harmed or is this in the limited categories (“pockets”) of cases in which recovery is available for pure economic or emotional harm?

4. Duty/Injury Breach Factual cause Legal cause/scope of liability Damages Proximate cause Under US law duty* is a question of law for the court. The others are issues for the jury if reasonable people could disagree about the answer under the relevant rule or standard. * This includes defining the pockets of cases in which a claim is available for pure economic or emotional loss.

5. In the 19th century liability for carelessly caused harm existed in pockets in which care was required by custom, an actor expressly undertook a duty of care, or an actor controlled a dangerous instrumentality. • “Duty was repeatedly taken for granted and consisted in the defendant either having put himself in a position in which any sensible man would act carefully (e.g. assuming control of dangerous things) or in having assumed something like a status which demanded professional skill on his part.” • Percy Winfield, Duty in Tortious Negligence, 34 Colum. L. Rev. 35, 38 (1934)

6. Over time courts began to speak of a general duty of care breach of which was actionable negligence. The outer counters of the general duty of reasonable care are debatable . . . . • The “neighbour principle” in Donoghue v. Stevenson (A.C. 1932) is an influential statement: • “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor . . . . [meaning] persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected . . . .” (Text 16)

7. Lundmark collects some more expansive formulations of criterion of duty . . . . these became popular as the ambit of negligence liability expanded. • The three factor test (p. 16): • Was the injury reasonably forseeable? • Was there a sufficient relationship of proximity between the parties? • Is it just and reasonable to impose a duty on the defendant? This test was popular in England until 1991 and remains popular in the commonwealth. The usual reference is to a similar two factor test in Annsv. Merton London Borough Council(H.L. 1978).

8. U.S. v. Carroll Towing Co., Inc. (1947), Text 17, introduces the “Hand formula” and cost-benefit balancing . “if the probability be called P; the injury, L; and the burden, B; liability depends upon whether P is less than L multiplied by P: i.e., whether B is less than PL.” So it is negligent not to have a crewman aboard a moored barge if the burden of having him there is less than the losses he can avert by being aboard discounted by the probability that the circumstances in which he can avert such losses will arise. In the US the Hand formula is thought to bear on the standard of care and not on duty.

9. Tarasoff v. Regents of the University of California, p. 41, applies a “seven factor test.” See p. 42 (bottom) “We depart from this fundamental principle only upon the balancing of a number of considerations; major ones are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s 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 to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved.” (Numbers added. Quoting Rowland v. Christian.)

10. The premise is that there is a very expansive general duty of care under something like the following principle at p. 42. “. . . whenever one person is by circumstances placed in such a position with regard to another [that every one of ordinary sense who did think would at once recognise] that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger . . .” (adding the bracketed material) The quotation is from Lord Brett’s concurring opinion in Heaven v. Pender (QBD 1883).

11. The seven factors were first deployed to overturn duty limiting rules that applied to possessors of land. In Tarasoffthey are being invoked to expand the duty of care by imposing a duty to act. Many of the seven factors assume the purpose of negligence is instrumental and economic, echoing the Hand formula.

12. 3 of the 7 are factors of economic policy: “(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 to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved.” 3 factors are relevant whatever your view of the purpose of negligence liability: “(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered.” And then there is “(4) the moral blame attached to the defendant’s conduct,”

13. Action creating a foreseeable and direct risk of physical harm to another if the action is done carelessly Identifying when there is a duty of care is easier if we turn our attention from the factors used to delineate the outer boundaries of when there is a duty to the cases at the core where duty is non-controversial. It is best to leave “direct” fuzzy. Often a harm is described as indirect when it is a result of abnormal intervening human action.

14. The requirement of feasance or action • Text p. 32 top. Also discussed at Text pp. 40-41 (but focusing on the exceptions) • “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” • Third Restatement § 7(a) A sees B, a blind man, about to step in front of an approaching automobile. A could easily prevent an accident by calling out a warning. Does A have a legal duty to B under § 7(a)?

15. “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” • Third Restatement § 7(a) C is driving within the speed limit. He sees B, a blind man, step into the path of his car in the middle of the block (B is breaking the law). Does C have a legal duty to B under § 7(a) to apply his brakes and stop? If so, then how do you distinguish the previous case?

16. “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” • Third Restatement § 7(a) D sees a dead deer lying on the road. E kills a deer on the road while driving carefully. It is apparent that the deer on the road creates a risk to other drivers. Does either D or E have a duty to take steps to protect other drivers from the deer under § 7(a)? Why?

17. The requirement of foreseeability Marsalis v. La Salle, p. 31 (La. App. 1957) D’s cat bites P while P is shopping in D’s store. The cat had never bitten anyone before. Worried about rabies, P asks D to hold the cat for 14 days. D neglects to do so. As a consequence P undergoes painful treatment for rabies that is found out to be unnecessary once the cat returns. • The court reasons: • D is not subject to liability merely because it owned the cat for D had no reason to foresee the cat might bite someone. • D is not subject to liability merely because the incident occurred in its store. A shop owner has a duty to eliminate apparent hazards to customer, which a cat is not unless it is known to have vicious tendencies.

18. Marsalis v. La Salle, p. 31 (La. App. 1957) D’s cat bites P’s while P is shopping in D’s store. The cat had never bitten anyone before. Worried about rabies, P asks D to hold the cat for 14 days. D neglects to do so. As a consequence P undergoes painful treatment for rabies that is found out to be unnecessary once the cat returns. The court finds a duty based on D’s undertaking to hold the cat. You will see a similar principle in Class 4 stated in terms of “invited reliance.” Instead the cat flees after biting P so D never agrees to hold the cat. P tells D she is worried about rabies and requests that he hold the cat if it returns. D says nothing. Later that day the cat returns. Does D have a duty to hold it for P? Hasn’t D’s conduct (owning the cat and the store) created a risk of harm to P?

19. Under traditional common law rules a land occupier owed limited duties to certain classes of people on his land. See Text 34. • A general duty of reasonable care was owed to business invitees. • A limited duty was to owed to social guests (“mere licensees”). Typically this was to warn of non-obvious hazards. • A very limited duty was owed to trespassers.

20. To some extent these rules sacrifice the security of the victim from harm to preserve the liberty of people on their own land. When a hazard is a condition of the land the possessor’s neglect may seem to be nonfeasance rather than misfeasance.

21. Duty-limiting rules for land possessors Action creating a foreseeable and direct risk of physical harm to another if the action is done carelessly Nonfeasance

22. The Occupiers Liability Act of ‘57 lumped social guests with business invitees, establishing a general duty of reasonable care is owed to both. The Act of ‘84 addresses the duty owed to a trespasser. See Text 34. White v. Council (A.C. 1990), Text 34. P falls in a hazardous gap between the plinth (base) of the Council’s building and a parking garage while taking what he mistakenly thought was a shortcut to the garage. Barriers had been erected to discourage people from taking this route but these precautions proved inadequate in a dark and rainy night.

23. The trial court applied Section 1(3) of the ‘84 Act, quoted at p. 34 bottom, holding that requirement (a) was met while (b) and (c) were not. The court of appeals agreed as to (a) and (b)—affirming no liability—while reserving judgment on (c). See p. 38. What result if P had been able to present evidence that someone else was injured earlier trying to take the same shortcut?

24. Tarasoff v. Regents of UC, p. 79 (Cal. 1976). Tarasoff (T) was murdered by Poddar (P). Poddar had disclosed his intentions to kill T to Moore, a psychologist. T’s heirs and executor sue Moore, the campus police, and UC claiming they were negligent in failing to warn T or to commit P. At pp. 42-43 Torbriner begins the analysis with the seven factor test.

25. But then he notes the general duty of care does not apply in this case because “when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim.” p. 43.

26. Accord R2 § 315, cited p. 43 (3rd¶) supplies special duty rules in cases in which an actor’s negligence lies in failing “to control the conduct of a third person.” A duty to control exists only if there is a “special relationship.” Either • a special relationship exists between the actor and third person which imposes a duty upon the actor to control the third person’s conduct, or • a special relationship exists between the actor and the other (the victim) which gives the other as a right to protection.

27. Sometimes it is not necessary to couch the duty of care in terms of a special relationship. A gives a loaded gun to B (a young child) who shoots C. Is A’s liability to C predicated on A being in a special relationship with B and/or C? Why is this approach not available in Tarasoff?

28. Often a duty based on relationship to victim. Familiar relationships that create a duty of care include: • common carrier to passenger • hotel to guest • landlord to tenant • landowner to business visitor • university to student on campus Easy cases—normal conduct of people in areas controlled by the actor that creates a risk of harm to people the actor serves, e.g., provide sufficient lighting on walkways, regulate traffic to minimize risks, etc . . . There likely also is a duty to protect against foreseeable criminal conduct by providing security. Kline v. 1500 Mass. Ave Apartment, p. 41, is a leading case.

29. Duty based on relationship to third person (the wrongdoer or agent of the harm) Tobriner builds on prior California cases holding that a physician who treats a patient with a communicable disease or who otherwise knows a patient has a condition presenting a danger to others has a duty to inform the patient of the risk the patient poses to others.

30. A duty to another to inform a patient of the danger they pose to the other is not problematic. Tarasoff asks whether there is a duty to warn the other or to restrain the patient. This is far more problematic . . . The majority limits the psychologist’s duty to a duty to warn. They do not allow the claim for negligent failure to confine. Later cases in California and elsewhere in the wake of Tarasoff further limit the duty . . .