Anglo-American
Contract and Torts
Prof. Mark P. Gergen
Class Two
Negligence—duty of care
The negligence action
Text 16 (Lundmark)
1) Duty
2) Breach
3) Injury
4) [Proximate] Causation
5) Damages
Restatement Third, Torts (2011)
1) Duty
2) Breach
3) Factual cause
4) Legal cause/scope of liability
5) 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.
1)
2)
3)
4)
Duty/Injury
Breach
Factual cause
Legal cause/scope of
liability
5) 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?
1)
2)
3)
4)
Duty/Injury
Breach
Factual cause
Legal cause/scope of
liability
5) 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.
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)
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)
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):
1) Was the injury reasonably forseeable?
2) Was there a sufficient relationship of proximity
between the parties?
3) 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 Anns v. Merton London Borough Council (H.L. 1978).
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.
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.)
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).
The seven factors were first deployed to overturn duty limiting
rules that applied to possessors of land. In Tarasoff they 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.
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,”
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.
Action creating a foreseeable and
direct risk of physical harm to another
if the action is done carelessly
It is best to leave “direct” fuzzy. Often a harm is described as indirect
when it is a result of abnormal intervening human action.
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)?
“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?
“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?
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:
1) D is not subject to liability merely because it owned the
cat for D had no reason to foresee the cat might bite
someone.
2) 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.
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?
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.
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.
Nonfeasance
Action creating a foreseeable and
direct risk of physical harm to
another if the action is done
carelessly
Duty-limiting
rules for land
possessors
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.
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?
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.
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.
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) 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
(b) a special relationship exists between the actor and the
other (the victim) which gives the other as a right to
protection.
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?
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.
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.
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 . . .