Liability and compensation




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parties' had a special relationship which could impose duty on ∆ to care for ∏. Also, the issue that went to the jury, approved here, whether ∆ had voluntarily begun to assist ∏. Dissent, no authority that the relationship would create a duty here, not the case to change law. G - if you start helping, then you're held to reasonable person standard



    1. No Duty to Assist Note - Liability in Negligence (J.C. Smith)

      1. source of obligation to take care not to create risks of harm when we act is totally different form the course of our obligations to take care to remove risks of harm which we did not create, wherever such duties exist, when they exist

      2. legal obligation is the converse of a liberty to act - imposition of a duty must be justified for limiting right of freedom of action or free agency of individual

      3. elimination of the distinction between not injuring neighbor and taking action to prevent harm from happening to your neighbor collapses important distinctions between law and morality; so such a law would now force everyone to be Good Samaritans

    2. The Case for a Duty to Rescue (Ernest J. Weinrib, Yale L.J.)

      1. general rule - except when the person endangered and the potential rescuer are linked in a special relationship, there is no special duty to rescue

        1. distinction between infliction of harm and the failure to prevent it

        2. courts have refused to enunciate a general duty to rescue

      2. "but for" test

        1. focuses on the time at which ∆ failed to act to prevent harm to ∏ and then compares the actual course after that time with the hypothetical course of events for the same subsequent period

        2. Pseudo-nonfeasance: if misfeasance masquerades as nonfeasance, transform the but-for test so it attends not the actual injury but the risk of injury

        3. real nonfeasance when the risk exists independent of the defendant's presence or absence, the defendant's part has no bearing on this fact

      3. supporting no duty to assist rule

        1. duty to assist strangers would interfere with the liberty we have to conduct our lives as we choose so long as we do not create risks of injury to others

        2. would contradict basic principles of causation

        3. voluntary altruistic acts can retain their full moral values

        4. duty to rescue would create judicial problems of process/pragmatic

      4. favoring duty to assist

        1. each has right to protection by the community

        2. whether there is a duty is not merely a matter of balancing the autonomy of one citizen against the safety of another - harm to one extends to many

  1. Limited Duty: Owners and Occupiers of Land

    1. Protections to landowners when visitors are injured on the owner’s property

    2. Duty of care a landowner owes varies with regard to status of visitor

American Industries Life Insurance Co. v. Ruvalcaba (TXAP 2001) - ∆'s son was visiting father's office, fell off of unrailed staircase 2 stories & suffered severe head injury. Court held that ∆'s son was not an invitee b/c he was not invited, his presence was not of mutual benefit to him and ∏, and there was no potential pecuniary profit to ∏ associated with his visit. ∆'s son was not an invitee because he was the child of a tenant. ∆'s son was not an invitee because it was an office building, not a public building. ∆'s son was either a licensee or trespasser, either way, no evidence that ∏ was negligent.

    1. The duty of an owner or occupier of land to keep the premises in a safe condition may subject the owner or occupier to liability in two situations: (1) those arising from a defect in the premises, and (2) those arising from an activity or instrumentality.

      1. to invitee: enters another's land with the owner's knowledge and for the mutual benefit of both (some places treat guests as invitees)

        1. tests: (1) economic benefit or advantage test or (2) public invitation test

        2. general duty to use reasonable care - so that invitees are not unnecessarily exposed to danger, things you know about and things you should know about

      2. to licensee: enters and remains on the land with the owner's consent and or his own convenience or on business with someone other than the owner

        1. not to injure willfully, wantonly, or through gross negligence and to warn of or make safe dangerous conditions that you know about

        2. exercise reasonable care to disclose defects that are known to the owner and would not be known by the licensee

      3. to trespasser: enters another's property without any lawful authority, permission, or invitation - not to cause injury willfully, wantonly, or through gross negligence

      4. traditional duty trichotomy under some modification/attack – depends on jurisdiction

    2. Note on Child Visitors

      1. Attractive Nuisance - rule: some human developed condition on the land "attract" or "lure" children to play in the area - allurement/attraction gradually eliminated

      2. Restatement 2d §339: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

        1. the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

        2. the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

        3. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

        4. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

        5. the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children

      3. Prosser - liability and natural risks - owner not required to improve wild land in a state of nature to make it safe for trespassing children - maybe he should be

      4. Application of Restatement 2d - difficulty applying to common hazards like fire, water, heights, vehicles

        1. children are expected to recognize the dangers in these hazards

        2. moving toward applying general negligence principles to children injured on property regardless of their status in entering

Rowland v. Christian (CASU 1968) - ∏ was visiting ∆ when he badly injured his hand on a broken ceramic faucet which ∏ was allegedly aware of. Court held that the focus on the status of the injured party is contrary to our modern social mores and humanitarian values. Everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. Test = whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. - General Rule - Heaven v. Pender (QB) - "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 recognize 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."

    1. Duty Note

      1. current rules and exceptions resulted from the erosion of harsh earlier rules

      2. Major Tort Law Policy Considerations

        1. Deterrence or Accident Prevention Considerations - negligence law should help reduce the level of accidents in society

        2. Economic Considerations - negligence law should help to reduce the costs of accidents when they do occur, but should not be an undue economic burden on productive endeavors

        3. Allocation of Losses - Loss-Spreading - compensation to avoid severe economic dislocation for victim/family

        4. Administrative Concerns of Courts - negligence principles should create workable legal rules for people - complicated rules might be rejected

        5. Fairness, Ethical, Moral, and Justice Considerations – neg. law should be fair, just, moral, & ethical; consider context & society's expectations

        6. Legislative Considerations – neg. law can complement/reinforce legislation

    2. Landlord Duty

      1. landlords are not generally liable in negligence for injuries to tenants or guests arising from defective/dangerous conditions on the leased premises

      2. exceptions - landlords do have a duty of reasonable care for forseeable risks where:

        1. concealed dangerous conditions were known to the landlord

        2. dangerous conditions create risks to those outside the premises

        3. the premises are leased for public admission

        4. conditions are in the common areas that the landlord retains control over

        5. the landlord breaches an agreement to repair the premises

      3. Habitability legislation does not necessarily result in tort liability for non-compliance

    3. Note on Varying Culpability as a Tool to Limit Duty

      1. a full duty of reasonable care is owed to invitees and lesser duties of care are owed to licensees and trespassers

        1. guest passengers

          1. "guest passenger" laws - guest passengers in vehicles had to prove at least gross negligence or recklessness to recover against the driver

          2. business related passengers owed full duty of reasonable care

      2. sports - majority of courts - co-participants in sports activities owe a duty to each other only to avoid reckless or intentional misconduct, proof of unreasonable conduct is such contexts is not sufficient to maintain an action

  1. Limited Duty: Emotional Harm without Physical Injury

    1. Emotional Distress of Persons Subject to Physical Risk

      1. G - concern re: relative validity/importance of different types of harm

        1. physical injury - person or property, tangible things

        2. physical injury w/emotional harm parasitic to primary physical injury

          1. long been compensable just fine – holisitic approach

          2. known as the impact rule

        3. emotional harm w/o physical injury - sometimes hard to differentiate

          1. very strict line here re: compensation

          2. law has moved toward recognizing some of this category

Mitchell v. Rochester Ry Co. (NYSU 1896) - ∏ was frightened when two horse carriages came very close to hitting her, she fainted and had a miscarriage. Court held that she could not recover, the fright would not be recoverable, so the effects of the fright would not be recoverable.

      1. physical risk line of cases

        1. Impact Rule - now, often satisfied by even slightest touching in accident context, some require proof of physical manifestations arising from emotional distress, most dropped that requirement

        2. Zone of Physical Danger Rule I - Fear for One's Own Physical Well-Being - space within which a party is at foreseeable risk of physical injury - if party is in the zone, recovery was appropriate for distress from the fear of physical injury - typically emotional harm must be serious and must have arisen in circumstances that tended to corroborate its existence

        3. Zone of Physical Danger Rule II - Fear for the Physical Well-Being of Another - suffered serious emotional distress at seeing the serious injury to a close relative - many do not delineate between fear for one's own safety and distress for a family member

    1. Bystander Emotional Harm - Physical Risk to Persons Other than the Person Suffering Emotional Distress

      1. scope - cases are tied to physical risk

        1. plaintiff actually observes the injury (percipient witness)

        2. plaintiff closely related to the victim

          1. NY - limits to "immediate family"

          2. best friends / cousins / uncle & nephew - most excluded

          3. intimate, non-married partners – depends on situation, generally no

        3. resulting emotional distress is severe

          1. (initially) the plaintiff suffers manifest physical consequences from the emotional distress – resulting physical injury rule (may be required)

          2. Might need diagnosable psychological injury

      2. the adoption of bystander recovery rule doesn't eliminate the need to retain he impact or zone of danger rules in situations where the negligent conduct poses only a physical risk to the person suffering the emotional distress

Clohessy v. Bachelor (CTSU 1996) - ∏ (mother & son) were crossing a street with second son when he was hit and killed by ∆ who was driving negligently. Court held that bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not he result of an abnormal response.

Dillon v. Legg (CA) – three factors to consider in determining foreseeability (1) location of ∏ (2) sensory perception of ∏ (3) relationship of ∏ to the victim

Thing v. La Chusa (CA) "∏ may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said ∏: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) 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."

    1. Independent Duty for Emotional Well-Being - based on the ∆'s breach of an independent duty obligation to act reasonably for the ∏'s emotional well-being

      1. Overview of Emotional Harm Recovery in Independent Duty Contexts

        1. Bodily Remains and Death Notification Cases

          1. negligent mishandling of a decedent's body by a funeral home

          2. loss of a body, switching bodies, mixing up cremated remains

          3. erroneous notification of a loved one's death

          4. limited to persons contracted for the disposition of the body and their immediate relatives

        2. Other Independent Duty Situations Allowing Emotional Distress

          1. Molien v. Kaiser Hospital Foundation (CA 1980) - court held that where physician erroneously diagnosed ∏ with syphilis and instructed her to inform her husband, doctor could be liable for husband's distress

            1. damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact

            2. a cause of action to recover damages for negligently inflicted emotional distress will lie in cases where a duty arising from a preexisting relationship is negligently breached

          2. Marlene F. v. Affiliated Psychiatric Medical Clinic (CA 1989) - therapist was treating mother & son, sexually abused son

Burgess v. Superior Court (CASU 1992) - pregnant ∏'s ∆ obstetrician was negligent in delivering the baby, caused brain damage, ∏ sued for her emotional distress. The court held that there is a direct victim between the ∆ and patient. "Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother." Pre-existing physician-patient relationship directed toward mother and fetus. - G - forseeability is not exclusive, what about dad, dad probably wouldn't be enough to be direct victim, dad who came to all visits - maybe bystander, if doctor advised the dad, maybe either
Huggins v. Longs Drug Stores California, Inc. (CASU 1993) - ∏ filled a prescription from ∆'s pharmacy for her baby, pharmacist included the wrong instructions re: dosage and the baby became ill. The court upheld the trial court in holding that the pharmacy was not liable to the parents because the parents were not his patients and were not owed a duty, therefore they could not recover as direct victims. Dissent x2 - the prescription necessarily implicated the parent's participation, the rationale about public policy & efficiency is bogus. G- parents weren’t distressed at the time it happened.

      1. Others

        1. Rescuers & Emotional Distress (generally not allowed)

        2. Cf. Johnson v. Jamaica Hospital (NY) - parents cannot recover for emotional distress where day care center negligently allowed child to be abducted, child was later recovered – G - not present for incident, not bystander

        3. Ramona v. Ramona - father could recover when therapist had planted (proven) false history of sexual abuse and daughter confronted father about those allegations

        4. Kately v. Wilkinson - friend can recover where boat's steering locked and crashed into skier-friend, pulled dying friend into the boat but couldn’t take her to help b/c of steering, emotional distress from watching friend die

Boyles v. Kerr (TXSU 1993) - ∆ secretly videotaped ∏ having sex with him, showed it, gossip spread. Court awarded ∏ $1,000,000. Court held "mental anguish damages should be compensated only in connection with ∆'s breach of some other duty imposed by law." Dissent - this disproportionately affects women.

    1. Duty to Protect Against Fear of Future Disease (generally AIDS & Toxic Torts)

Majca v. Beekil (ILSU 1998) - two claims, ∏1 exposed to scalpel used by podiatrist who had AIDS, ∏2 was treated by a dentist who had HIV. Both ∏ wanted damages for their fear of contracting AIDS for the time period between possible exposure and receipt of reasonably conclusive HIV-negative test results. Court held that fear during the "window of anxiety" is reasonable; however, neither of these ∏s presented evidence of actual exposure to HIV, which would be necessary to distinguish claim from those based on conjecture/speculation from those based on genuine fear of contracting AIDS. (majority of courts agree there)

      1. Brzoska v. Olsen (DE) "it is unreasonable for a person to fear infection when that person has not been exposed to a disease."

      2. G - even if they could show actual exposure, the ∆ argued that it still wouldn't be likely they would become infected - court said that didn't really matter, emotional distress would be okay

Potter v. Firestone Tire & Rubber Co. - four landowners living next to a landfill - as a result of ∆ dumping toxic liquid waste, landowners were subjected to prolonged exposure to carcinogens through underground water supplies - damages for causing risk of cancer, anxiety over developing cancer, medical monitoring - court denied risk claim, said for emotional distress you needed probability that you would contract cancer (could be waived if fraud, recklesssness) - recovery for medical monitoring if significant exposure and doctor reasonably prescribed monitoring

      1. Ayers v. Jackson Township (NJ) - factors for awarding medical monitoring damages; likelihood of future disease, degree of exposure, seriousness of disease; value of early diagnosis

        1. Bourgeois v. A.P. Green Indus, Inc (LA) - ∏ must prove monitoring is likely to help detect disease and that early diagnosis/treatment can help cure or mitigate disease

        2. Boryla v. Pash - when there is a present injury, such as present emotional distress, the "more likely than not" standard is inapplicable - ∏ can recover for emotional distress based on a reasonable concern that she has an enhanced risk of further disease (juries can deal with this)

      2. Physical Impact – might need to demonstrate present, existing physical impact

  1. Limited Duty: Responsibility for Conduct of Others - you don’t have to try to control somebody - it's really just doing something besides ignoring it

    1. Mental Health Professional's Duty to third parties based on a special relationship with person posing risk

Tarasoff v. Regents of University of California (CASU 1976) - ∏'s daughter was killed by a man who had told his psychologist that he intended to kill her. Court held that once a therapist does determine, or under applicable professional standards reasonably should have determined, that a 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. No hard rule, depends on circumstances. Dissent - therapists notified police that patient was planning to kill a girl named X, unsure what more should be required.

      1. Rowland v. Christian (quoting Heaven v. Pender) - whenever one person is by circumstances placed in such a position with regard to another… that if he did not use ordinary care and skill in his own conduct … 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.

      2. G - many states have adopted various versions of the Tarasoff duty, different in every jurisdiction

      3. G - somebody has information that somebody is posing a risk to another person - outside of therapist context this usually comes up in:

        1. schools and school officials (generally younger students)

        2. anybody with information about possible child abuse risk

        3. G - Restatement 2d exception to general rule - look for any relationship between defendant & harmer or between defendant and harmed - CA court says you need both relationships

      4. arguments against duty

        1. therapist might be under a duty to violate confidentiality - answer - statute says there is not duty not to disclose

        2. therapists cannot always accurately predict whether there is a danger - court says they just have to act as other professionals would act

        3. G - risk for therapists not reporting, not record keeping, having to inform patients about duty, inadvertently encouraging harm

Dunkle v. Food Service East (PASU 1990) - ∏ was violent when not on meds, psychiatrist knew this, discharged him, ∏ killed live-in girlfriend. Trial granted summary judgment to psychiatrist, counselor, doctor, Appeals affirmed. Court here held that psychologist owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual.

      1. Cal Evid Code - "A testimonial privilege is accorded to a patient regarding all information developed in a patient/psychotherapist relationship except that the therapist may testify if the therapist reasonably believes that the patient is a danger to himself or to others, and communication is necessary to prevent the danger."

      2. AMA - "A physician may not reveal the confidence entrusted to him in the course of medical attendance … unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community."

      3. Cal Civ Code - after Tarasoff - adopted statute giving therapists immunity for failure to warn "except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims." - duty discharged by warning the victim and a law enforcement agency

      4. HIPAA regs trump state laws - but create an exemption for Tarasoff claims
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