Negligence – Prima Facie Case
• D owed P a Legal Duty
• Breach of Duty
• Actual Damages
• Factual Cause
• Proximate Cause
Camp Site Hypo
The Rockpit family was camping together. Their
campsite had a firepit, and the Rockpits started a
fire. Defendant, a friend of the Rockpits, was
camping nearby and later that evening joined the
Rockpits. Defendant stayed up late talking with
some of the Rockpits. None took care to ensure
that the embers in the firepit were safe. After
everyone went to bed, Anthony Rockpit – age 2 –
wandered out of his tent, stepped into the firepit,
and was terribly burned. Anthony’s family sues
Defendant for negligence. Is she liable?
Ex-Lovers Hypo
Paula and Don had previously been in a romantic
relationship. During their break-up, Paula told Don “they
were still friends.” Shortly thereafter Don visits Paula’s
workplace uninvited. She asks him to leave and he refuses.
Paula then grabs the gun she has hidden in her desk and
again tells Don to leave. Don convinces Paula to put the gun
down. He then grabs the gun. There is a loud pop and Don
collapses to the floor with a gunshot wound to his stomach.
Don pleads for Paula to call 911. Paula instead hands Don a
towel for his wound, telling him “don’t you dare get blood all
over my carpet!”. She then goes on a tirade, telling Don he
had been a lousy boyfriend and he got what he deserved.
When a co-worker stops by Paula’s office 20 minutes later the
co-worker sees Don and calls 911. Don dies from his injuries.
The emergency room physician testifies that Don would have
survived had he arrived at the hospital 15 minutes earlier.
Don’s estate sues Paula. Is Paula liable for Don’s death?
Public Duty Doctrine
• Scenario: Government fails to act
• Rule: No duty owed P if general duty to
protect the public
• Not Applicable if:
– Duty owed to particular group of which P is a
member
– Affirmatively undertake duty + reliance (see
chapter 17)
Florence Exception
• Duty to protect if –
1) Undertaking: assume duty to protect P or special
class of persons of which P is a member; and
2) Detrimental reliance: P (or third party) actually
relies on D protecting P to P’s detriment
• Effect
– Exception to public duty rule if D is a government
actor
– Exception to nonfeasance no duty rule if D is a
private actor
Nonfeasance No Duty Rule -- Exceptions
• Duty of reasonable care for P’s safety when:
– Conduct creates the risk
– Prior conduct harms P
– Statute/ordinance requires D affirmatively protect P
– D is possessor of land and P in peril and helpless
– Voluntarily undertook to care for P (Wakulich)
* Restatement (Third):
• No duty unless increase risk to P.
• Permitted to discontinue care if P not worse off than if D
had not intervened.
– Special/formal relationship
– “Relationship” based on fairness principles (Podias)
– Action as undertaking + reliance (Florence)
• Duty to not unreasonably interfere w/ others attempts to help
Element
Duty
Posecai Approaches #1-#3
D owes P duty to protect from
third parties if:
• Special relationship
• Foreseeable risk
• Foreseeable risk
Breach of • Reasonable and prudent
person would seek to
Duty
minimize or eliminate this risk
• D failed to do so
Posecai Approach #4
D owes P duty to protect from
third parties only if:
• Special relationship
• Foreseeable Risk
• B<P*L
• Foreseeable risk
• Reasonable and prudent
person would seek to
minimize or eliminate this
risk
• D failed to act as a
reasonable and prudent
person would
Mugging Hypo
Defendant owns a grocery store. In the past there
have been several crimes in Defendant’s parking lot
late at night. After the third crime plaintiff puts up a
sign in the parking lot stating “No Trespassing AfterHours.” One night, after the store has closed,
Plaintiff is waiting in Defendant’s parking lot for a
friend. Plaintiff is mugged. Plaintiff sues Defendant,
alleging that Defendant should have provided
better security in the parking lot at night.
Defendant asserts “no duty.” Will the court agree
with Defendant? Would your analysis be different if
Plaintiff was an employee of Defendant who was
mugged while leaving work after working late one
evening?
Duty to Protect From Third Parties
Scenario 1: Based on relationship b/w P and D (Iseberg, Posecai)
•
•
•
•
Special relationship b/w P and D
Risk arises w/in scope of relationship
Foreseeable risk
— Some courts require imminent risk when special relationship = employer-employee
— Some courts apply narrowly (i.e., Posecai approaches #1 and #2)
[Risk utility balancing (Posecai approach #4)]
Scenario 2: Based on relationship b/w D and third party
•
•
•
•
Special relationship b/w D and third party
Risk arises w/in scope of relationship
Foreseeable risk to P
Ability to control
*Courts typically characterize duty to protect as duty to control third party, not duty to
warn P
Scenario 3: Affirmative act facilitates third party’s risky conduct
•
•
Duty if entrust with chattel + foreseeable third party apt to use chattel in dangerous way
Serving alcohol to third party – check jurisdiction
* CAUTION: if court views third party as solely responsible for own conduct, then no duty/no
proximate cause
Drugs Hypo
Husband is a patient of Dr. Defendant. Dr. Defendant
prescribes Husband anabolic steroids, which may cause
a patient to become violent. Dr. Defendant informs
Husband of the drug’s risk. Wife later informs Dr.
Defendant that her husband has been acting irritable.
After evaluating Husband, Dr. Defendant informs Wife
that her husband is not a threat to himself or anyone
else. Assume a reasonable and prudent doctor would
have realized that Husband was highly likely to become
violent. A week later Husband becomes agitated, grabs
his gun, and shoots Wife, gravely injuring her. Will Wife
prevail in her lawsuit against Dr. Defendant?