Torts: Advanced Topics in Negligence

Privity of contract

Direct contractual relationship between two parties.

MacPherson rule

Manufacturers will be liable to third parties that were directly harmed by their breach of duty.

Claggett rule

Duties or obligations inherent to the attorney-client relationship will not flow to third parties unless it is absolutely clear from the facts that an employment relationship can be inferred.

Privity of contract is necessary to hold an attorney liable for damages.

Common law duty to act

A person does not have an affirmative duty to act to prevent harm unless a special relationship exists between the parties.

Four duty to act factors:

(1) Nature of the underlying risk of harm (foreseeability and severity);

(2) Opportunity and availability to exercise reasonable care to prevent harm;

(3) Comparative interests of, and relationship between/among, the parties;

(4) Societal interest in the proposed solution, based on considerations of public policy and fairness.

J.S. rule

A spouse has a duty to act when aware of the significant risk of harm posed by their partner to others.

Tarasoff rule

If a therapist learns from his patient about intent to do harm to an identifiable third party, he has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

Failure to warn a potential victim or notify authorities constitutes actionable negligence.

Aikens rule

Pure economic injury occasioned by interruption of commerce is not recoverable in a negligence action absent damages to person or property or a special relationship between the parties.

Pure mental or emotional loss rule

Recovery is not allowed unless accompanied by physical injury or a physical impact; courts traditionally require tangible harm to support claims for emotional distress.

Physical impact rule

Physical impact that causes or accompanies the emotional distress is a prerequisite for recovery for negligent infliction of emotional distress; limits the scope of liability by ensuring that emotional distress claims are tied to observable physical harm.

Daley rule

Recovery for emotional distress is allowed if the injury is severe, genuine, and foreseeable as a result of ∆’s negligence; π must prove that the emotional distress is severe and that the resulting harm was foreseeable.

Hedgepeth rule

π must have been in a zone of physical danger caused by ∆’s negligence in order to recover for NIED.

Bystander recovery

Allows individuals to claim damages for emotional distress from witnessing a traumatic event involving a loved one.

Bystander recovery elements:

(1) Close relation

(2) Presence and awareness

(3) Direct result

Close relation

The bystander is closely related to the victim (general interpretation; family or relative).

Presence and awareness

The bystander is present at the scene of injury at the time it occurs.

Direct result

The emotional distress must be a direct result of witnessing the injury.

Negligent misrepresentation elements

(1) ∆ was in performance of trade or profession;

(2) ∆ carelessly provided erroneous information;

(3) The information was used by π to his detriment;

(4) π was injured thereby.

Wrongful conception

A claim brought by parents for damages due to a failed sterilization procedure or other medical negligence leading to an unplanned pregnancy.

Wrongful birth

A claim by parents for damages resulting from the birth of a child with disabilities due to medical negligence, allowing recovery of emotional distress and additional expenses incurred.

Wrongful life

A claim brought by a child for being born with disabilities, arguing that he shouldn’t have been born in such a condition.

Premise liability

A negligence action involving property owners’ legal responsibility for injuries to occupiers that occur on the owners’ property due to unsafe or dangerous conditions.

Trespasser

A person who enters or remains upon land in the possession of another without a privilege to do so created by possessor’s consent or otherwise.

Known/discovered trespasser

Someone who enters or remains on the property of another without permission, and the property owner is aware of their presence.

Licensee

A person who is privileged to enter or remain on the land only by virtue of the possessor’s consent.

Invited licensee

Someone who is invited, most commonly as a social guest of the owner/possessor.

Bare licensee

Someone who chooses to come onto a property for his or her own personal convenience or benefit.

Invitee

Someone who is on the property for the mutual benefit of the property owner and the visitor; they enter for a purpose connected to the business or other interests of the owner/occupier.

Public invitee

A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

Business invitee

A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Premise liability analysis:

(1) Determine π’s status (trespasser, licensee, invitee) when they were injured;

(2) Identify the duty of care owed to π based on their legal status;

(3) Assess whether ∆ breached that duty.

Wantonly

Engaging in conduct that is done with reckless disregard for the safety or right of others, showing a deliberate indifference to the potential consequences of one’s actions (i.e. conscious disregard for known risks).

General rule (Premise liability)

A landowner owes a trespasser a duty to not willfully or wantonly harm them and to avoid reckless behavior that could cause harm. The duty is minimal and doesn’t extend to actively protecting trespassers from harm.

Sheehan rule

To a discovered trespasser, a landowner has a duty to exercise reasonable care to avoid inflicting injury, which includes warning of dangers that are known to the landowner but not apparent to the trespasser; this duty is greater than the duty owed to a mere unknown trespasser.

Licensee elements:

(1) Person who has permission to be on the premises;

(2) Person is on the premises for his own purposes.

Duty of care owed to licensee

(1) Premise owner has a duty to warn the licensee about any hidden dangers that the owner knows about;

(2) Not willfully injure the licensee.

Invitee elements:

(1) Person enters by invitation, express or implied;

(2) Person’s entry is connected with the owner’s business or with an activity that the owner conducts or permits to be conducted on his land;

(3) There is a mutuality of benefit or a benefit to the owner.

Duty to care owed to invitee

(1) Premises owner has a duty to exercise reasonable care to keep the premises reasonably safe;

(2) Take reasonable steps to discover any hazardous conditions on the premises;

(3) Warn the invitee of the conditions.

Barmore rule

Invitees receive a higher level of care compared to licensees, who only receive protection from known hazards and no duty of inspection.

Campbell rule

An invitee is an individual who is invited onto the premises as a member of the general public in furtherance of the premises owner’s business, even if they decide to not purchase anything that day.

Walmart rule

A π relying on circumstantial evidence must prove that, more likely than not, the dangerous condition existed long enough to give an owner a reasonable opportunity to discover the condition.

Attractive nuisance doctrine

Holds landowners liable for injuries to children trespassing on their property if the injury is caused by a hazardous condition that is likely to attract children.

Pinegar rule

Attractive nuisance only applies if there is hidden trap or inherently dangerous instrumentality that is peculiarly attractive to children.

Fireman rule

A legal doctrine that bars firefighters, police officers, and other public safety professionals from recovering damage for injuries sustained while performing official duties.

Bare licensee status

Affords public employees a minimal duty of care from the property owner, limited to refraining from willful or wanton misconduct.

Rivas rule

Public policy prohibits firemen and policemen from recovering for injuries related to the negligence that requires their assistance.

Kline rule

When a landlord leases portions of a building to tenants and maintains control over parts of the building for common use, the landlord has a legal duty to exercise reasonable care to minimize the risk to tenants of foreseeable criminal acts committed by third parties on the entire premises, particularly in the common areas.

Batra rule

An out-of-possession landlord has no duty to protect tenants from injuries inflicted by pets owned by tenants unless the landlord has actual knowledge of the animal’s dangerous propensities.

General responsibilities do not extend to controlling tenants’ pets.