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Special Relationships-custodial -Persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. -e.g. Harper v. Herman Special Relationships-coadventure Implicit in a coadventure is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself -e.g. Farwell v. Keaton Special Relationships-other -P who are vulnerable and dependent on D, who holds power over P's welfare. -Economic advantage to the D Special Relationship-third party & identifiable (restatement) In General, no duty to control the conduct of another -A special relation between the actor and third person which imposes a duty upon the actor to control the third person's conduct, OR -A special relation between the actor and the other which gives to the other a right of protection -e.g. Tarasoff Special Relationship-Patient/Therapist -When a therapist in fact determines or should have determined that a patient presents a serious danger of violence to a foreseeable victim, use a PROFESSIONAL STANDARD -The therapist of that patient has a duty to use reasonable care to protect the intended victim against such danger—REASONABLE PERSON STANDARD Non-negligent injury D non-negligently (or innocently) injures another, then D has a duty to take reasonable care to prevent further harm Non-negligent creation of risk D innocently creates a risk and actually knows/should have known then D has a duty to take reasonable care to prevent the harm from occurring. -e.g. Simonsen v. Thorin (utility pole) Undertakings/Commenced Rescue D has a duty where D takes charge of one who is helpless, to - exercise reasonable care to secure the other's safety; AND/OR -exercise reasonable care in discontinuing aid. -e.g. Farwell v. Keaton Rowland Test 1.Foreseeability of harm to the plaintiff 2.Degree of certainty that the plaintiff suffered injury 3.Closeness of connection between the defendant's conduct and the injury suffered 4.Moral blame attached to the defendant's conduct 5.The policy of preventing future harm 6.The extent of the burden on the defendant and consequences to the community of imposing a duty (utilitarian arguments) 7.The availability, cost, and prevalence of insurance Statutes-Sheehy test 1.Was the statute intended to protect a class of people from a particular type of harm? 2.Would a civil remedy promote the legislative purpose? 3.Is a civil remedy consistent with the legislative scheme? -e.g. Uhr v. East Greenbush Cent. School Dist. Negligent entrustment A D who supplies a chattel, has a duty to not let it fall into the hands of another, whom D knows or should know, may use it in a manner involving unreasonable risk of physical harm to himself/herself or third persons. Landowners-Common Law (traditional) 1.Determine the plaintiff's status (licensee, invitee, trespasser) 2.Determine the precise duty that attaches to an entrant with that status Landowners-Invitee -If enter land with permission, remains a licensee until occupier has a business interest -Business visitor: enters land with permission (express or implied) for a purpose directly or indirectly connected with possessor's business. -Public invitee: enters land open to the public for a purpose for which the land is held open to the public. Landowners-Licensee enters land with permission (express or implied), but NOT for a business purpose that serves owner/occupier (Carter v. Kinney) -includes social guests Landowners-Trespasser enters land without permission and whose presence is either unknown or objected to if known Landowners-Invitee duty duty to exercise reasonable care to protect against both known dangers AND those that would be revealed by reasonable inspection. Landowners-Licensee duty duty to protect against known, non-obvious dangers Landowners-trespasser duty no duty to protect against dangers. Duty only to avoid willful misconduct or reckless disregard of safety Attractive Nuisance Doctrine 1.Duty to trespassing children 2.When ARTIFICIAL condition causes physical harm 3.Possessor knows or has reason to know children will trespass 4.Possessor knows or should realize the condition creates an unreasonable risk of death or serious harm to children 5.Children did not discover or realize the risk 6.Balance of utility and risk supports eliminating condition 7.Possessor failed to exercise reasonable care Landlord/Tenant-crime preventions Landowner's duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants -e.g. Kline v. 1500 Mass Ave. Business/Patron-crime preventions Duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable -e.g. Posecai v. WalMart Test on foreseeability -specific harm rule -prior, similar incidents -totality of the circumstances -balancing approach Default Rule-General Duty - General duty to act with reasonable care to everyone in society not to create unreasonable risks or harms to others. -In general, No duty to rescue (with a few exceptions) Misfeasance vs. Nonfeasance Misfeasance-actively causing harm to another Nonfeasance-passively allowing harm to befall another When does policy limit the duty of D? In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that D has no duty or that the ordinary duty of reasonable care requires modification. Social Host Liability 1. For the most part, courts hold there is NO social host liability 2. Can lead to "unrealistic and far reaching social implications" (Reynolds) When is there a duty to protect against emotional harm? 1.Emotional distress follows from actual physical injury (did not go into this yet) 2.Emotional distress results from threat of physical injury 3.Plaintiff is a direct victim of conduct that creates an unreasonable risk of emotional distress. 4.Emotional distress results from physical injury to another-Bystander emotional harm E.D. result from imminent threat of physical injury. "Zone of Danger 1" 1.Negligent Act 2.Causes fright from a reasonable fear of immediate personal injury 3.Fright results in substantial bodily injury or sickness 4.May recover if the bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury. -Falzone v. Busch E.D for fear of cancer 1.As a result of D's negligent breach of a duty owed to P, P is exposed to a toxic substance which threatens cancer, AND 2.P's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that is more likely than not that P will develop the cancer in the future due to the toxic exposure. -Potter v. Firestone Gammon v. Osteopathic Hospital of Maine holding "Where D should have reasonably foreseen that serious emotional distress would result from his negligence, D is subject to liability." limited by "a reasonable person, normally constituted, would be unable to adequately cope with." & unique relationship of parties Dillon-Portee Test (INDIRECT/bystander NIED) 1.Negligence that caused death or serious physical injury to a victim. 2.A marital or intimate family relationship with the victim. 3.Observation of the death or injury at the scene of the accident. 4.Resulting in severe emotional distress. Zone of Danger 2 (INDIRECT/bystander NIED) 1.Allows one who is himself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of an immediate family member. 2.E.g. recovery based on threatened physical harm AND witnessing physical harm to another. e.g. Johnson v. Jamaica Duty of Landowner's-Rowland Approach A person in possession of land owes a duty to use reasonable care in the maintenance of their premises for the protection of lawful visitors.