Torts Neg - Duty

• Duty


  A person has a duty to foreseeable plaintiffs to exercise reasonable care with regard to foreseeable risk of harm arising from that conduct
• Determining duty


  1. Start with presumption that general duty applies

  2. Determine if a limited duty applies

  3. Determine if any relevant exception apply

  4. If nothing applies, see if new rule or exception should be made

  5. If not, general duty
• Limited duties


  • Owners and occupiers of land
  • Act affirmatively to prevent harm
  • Public duty doctrine
  • Emotional distress (physical risk line of cases)
  • Pure economic loss
• Status trichotomy


  • Determine type of visitor (invitee, licensee, trespasser)
  • Assign duty based on plaintiff's status
• Invitee


  Entering on land with owner's permission for mutual benefit; duty to use reasonable care to protect invitee from conditions that create an unreasonable risk of harm the knows of or would discover
• Licensee (social guest)


  Enters and remains on land with the owner's consent for his own convenience or business; not to injury willfully, wantonly. Or with gross negligence; if the owners knows of a harm, they should make it safe or warn
• Trespasser


  Without permission, invitation, or lawful authority; not to cause injury through willfulness, gross negligence, or wantonly
• General duty of care

  Use general duty to rule to establish if there was a duty
• Act affirmatively to prevent harm


  • Assist or rescue
  • Protect against 3rd parties
  • Protect against criminal acts
  • Negligent entrustment
• Public duty doctrine


  Duty if (1) government assumed a duty through promise or action (2) government knew inaction could lead to harm (3) direct contact between plaintiff and government (4) plaintiff relied on the promise and it was causally related to the harm plaintiff suffered
• Emotional distress (physical risk line of cases)

  • Impact rule
  • Zone of physical danger 1
  • Zone of physical danger 2/bystander rule
  • Bodily remains
  • Death notification
• Consortium Loss


  Loss of companionship and society (on exams, only know married for sure) (spousal, loss of child, loss of parent)
• Pure economic loss


  • Generally no duty to protect against negligent interference
  • Exceptions: special relationships, commercial fishing, public nuisance/private actions for public nuisance
• Zone of physical danger 1

  Fear for one's physical wellbeing (escaped without injury);if party is in zone of danger, recovery is appropriate for fear of inkiry
• Zone of physical danger2

  Contemporaneous sensory perception; arriving soon after or before substantial change (+bystander rule)
• Bystander rule


  • Plaintiff actually observes injury
  • Plaintiff is closely related to victim
  • Resulting emotion distress is severe
  • Plaintiff initially suffers physical manifest from emotional distress