Anglo-American Contract and Torts

Prof. Mark P. Gergen

5. Duty: Nonfeasance and Special Relationships

In the 20th Century common law courts adopted more expansive principles of duty.

The “neighbour principle” in Donoghue v. Stevenson (A.C. 1932):

“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)

Duty analysis in Tarasoff v. Regents of University of California Text 79 (Cal. 1976), begins with what may seem to be a similar principle.

“. . . 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).

This principle is quite broad. It is not limited to physical harm. It is not clear it is limited to affirmative conduct.

Under Tarasoff a court may adopt a special “no duty” rule for cases within this principle by applying a “seven factor test.” See Text 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.)

Many of the seven factors assume the purpose of negligence is instrumental and economic, echoing the Hand formula (B < P x L).

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.

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.”

Remaining is “(4) the moral blame attached to the defendant’s conduct,”

This is the back drop for today’s materials, which concern when is there a duty to use reasonable care to protect another from a harm doer.

Tarasoff v. Regents of UC, Text 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.” Text 43.

Accord R2 § 315, cited Text 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 describe the duty of care in terms of a special relationship.

Restatement Third, § 19, Illustrations 1-3 Supp 23 • Lending a car to someone whose license has been

suspended for reckless driving.

• Employing a known sexual predator as a janitor in an apartment building.

• Leaving a loaded gun where a child can find it.

Why is this approach not available in Tarasoff?

Often a duty to protect is based on an actor’s 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—duty to manage an area under the actor’s control to protect people the actor serves from normal carelessness, e.g., provide sufficient lighting on walkways, regulate traffic to minimize risks, clean up floors to avoid slips and falls, etc . . .

Kline v. 1500 Mass. Ave Apartment, (D.C. Cir. 1970) Text 41, extends this logic holding a landlord liable for having poor security when a tenant is attacked.

Duty to protect from criminal conduct based on relationship to victim

This NY case is similar. It is part of the legal back drop of McCarthy: Nallan v. Helmsley-Spear, Inc, 407 N.E.2d 451 (NY 1980)—P is shot in the lobby of a building. He sues the landlord claiming it had a duty to provide security because of prior criminal incidents. Held landlord has a duty to provide security in common areas. Cited at Supp 18-19.

In Tarasoff the duty is based on the relationship to the harm-doer.

The court builds on prior California cases holding that a physician who treats a patient with a communicable disease or some other condition presenting a danger to others has a duty to inform the patient of the risk the condition poses to others and is liable to the others for failing to do so when they are harmed as a result.

The court in Tarasoff is considering whether to impose a duty to warn the person endangered by the patient or to restrain the patient. Is this more worrisome than imposing a duty to advise a patient about a condition endangering others? Why?

Tarasoff limits the psychologist’s duty to a duty to warn. The court rejects the claim for negligent failure to confine. Later cases in California and elsewhere in the US in the wake of Tarasoff further limit the duty to mental health professionals who receive specific notice of an intent to harm a specific person. Why is the duty so narrowed?

Purdy v. Public Adm’r of Westchester, 526 N.E.2d 4 (NY 1988)—elderly resident of nursing home suffers a blackout while driving, injuring P. P sues nursing home claiming it had a duty to prevent her from driving since it was aware her medical condition made it dangerous for her to drive. Held no duty.

Given the reluctance of the California Supreme Court to impose anything more than a narrow duty in Tarasoff are you surprised with the result in this case? Do you see an underlying pattern?

The 3rd Restatement § 41 defines the special relationships that give rise to a duty to control as including

(1) a parent with dependent children, (2) a custodian with those in its custody, (3) an employer with employees when the employment

facilitates the employee’s causing harm to third parties, and

(4) a mental-health professional with patients.

Setting aside case (3), can you think of any features that unify these cases? Is case (3) explicable as an instance of misfeasance?

The duty of control is not equivalent to making a parent liable for the torts of a child. A parent is liable only if they fail to exercise reasonable control over a child and this harms the plaintiff.

McCarthy v. Olin Corp., Supp 7 Colin Ferguson kills 6 passengers and wounds 19 on the LIRR. He is armed with automatic handgun using “Black Talon” bullets, which are designed to expand on impact. Some of the victims sue Olin, the manufacturer of the bullets, as well as other defendants.

The suit is in federal court. New York law governs.

The district court dismisses the complaint on a 12(b)(6) motion for “failure to state a claim.”

The plaintiffs argue on appeal either their complaint states a claim under NY law or the question is sufficiently unclear that it should be certified to the New York Court of Appeals to resolve.The majority finds it is clear there is no claim under New York law. Calabresi dissents saying there may be a claim and the New York Court of Appeals should be asked to resolve the question.

Guido Calabresi was a leading US torts scholar before becoming Dean of Yale Law School and eventually being appointed to the US Court of Appeals.

The majority characterizes the legal issue as whether New York would recognize a duty of control in this situation in the absence of a special relationship.

"[C]ommon law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others. This is so ... even where as a practical matter defendant could have exercised such control." Purdy v. Public Adm'r of County of Westchester . . . . While there are of course many exceptions to this rule, we find that none of them is applicable here. . . . . As the district court pointed out, appellants have not alleged that any special relationship existed between Olin and Ferguson. Here, Olin could not control the actions of Ferguson. "[I]t is unreasonable to impose [a] duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the ... conduct [of another].“ Supp 10.

Do the plaintiff’s claim that Olin was negligent in failing to control Ferguson? Or do they claim that Olin was negligent in marketing especially lethal bullets in a way that made the bullets accessible to a madman? See Supp 9-10, beginning of Part III. According to the plaintiffs is this a nonfeasance case or a misfeasance case?

Framing the claim as one of misfeasance brings to the fore some other authorities discussed by Calabresi . . .

Codling v. Paglia, 298 N.E.2d 622 (NY 1973)—Codling loses control of car manufactured by Chrysler as a result of her negligent driving and a defect in the car. She collides into P. Held Chrysler is subject to liability to P because the defect contributed to the accident.

A car owner negligently leaves the keys in the ignition of an unlocked car. A thief steals the car and runs over a pedestrian. Note f, Supp 20, observes most courts hold the owner is not liable to the pedestrian but that “a substantial and growing” number allow the claim. NY courts initially allowed the claim. Then reversed position. Then the original rule of liability was reinstated by legislation.

Calabresi characterizes the issue not as whether there is a duty to control, but rather whether Olin is absolved from the general duty of reasonable care because the harm was caused by the intervening acts of another person (Supp 18).

But the issue is nowhere near as simple as that. New York law is, in fact, quite clear that the defendant in many circumstances can be under a duty to the plaintiff that makes him liable for the harm caused by the intervening negligent acts of a third party. . . . . Moreover, in cases such as this one involving the introduction of goods into the stream of commerce, New York courts have had little difficulty in holding the original seller to have a duty not only to the purchaser and parties having a direct relationship with the purchaser, but also to third-party bystanders. [He cites Codling v. Paglia.] . . . . In fact, under appropriate conditions, a defendant can even be held liable for the intervening criminal acts of a third party. [He cites Nallan.] . . . .

This makes Purdy (the claim against a nursing home for failing to prevent resident from driving car) puzzling to Calabresi (see Supp 19).

What then does the New York Court of Appeals mean when it says that it has

“ imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [an intervenor] whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person's conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others[?]”

Purdy, 530 N.Y.S.2d at 516, 526 N.E.2d at 7.

And this is how Calabresi solves the puzzle.

“the cases in which New York courts have refused to find the requisite relationship are ones in which the defendant did not have much of an opportunity to prevent the harm . . . .and in which imposing a duty would expose the defendant to liability ‘beyond sound public policy,’ . . . That is, they are the rather unusual cases where the allowance of liability would create ‘disproportionate risk and reparation allocation, and [would violate] public policies affecting the expansion or limitation of new channels of liability.’”

Which leaves the result in McCarthy a cipher to Calabresi.

“What of this case? On the one hand, it seems that the defendant could have substantially reduced the harm caused by these unusually destructive bullets by not marketing them to the general public. And the danger of exposing the defendant to liability beyond sound public policy might not be present here, especially if the New York courts were to conclude that marketing Black Talons to the general public causes more harm than benefit. On the other hand, this case may well involve ‘the expansion ... of new channels of liability,’ . . . since it involves a criminal intervenor in a case where no direct relationship exists between the injured plaintiff and the defendant.”

Calabresi is not arguing that there is a duty of care under NY law. He is arguing that he cannot determine what a NY court would say looking at the NY cases. He concludes this is a “public policy decision . . . the New York Court of Appeals has retained for itself . . . . We are simply not entitled to make policy for the State of New York. Such is a task for the State’s highest tribunal.”

Do you find anything surprising about this description of the role of the New York court?

Calabresi’s description of the negligence action is equally striking . . .

Calabresi on duty and the division of power between judge and jury, Supp 16.

“ In many jurisdictions, the existence of a duty depends primarily on 1) the foreseeability of harm to the plaintiff that would flow from the defendant's negligent acts, and 2) the absence of actions on the part of the plaintiff--like trespass or assumption of risk--that either destroy or lessen the defendant's liability. In those jurisdictions, it is rarely worthwhile discussing duty separately from the existence of negligence, proximate cause, and special plaintiff attributes. In the absence of such plaintiff-based defenses, a general duty to refrain from causing foreseeable and unreasonable harm is assumed to exist.” Supp 16.

That is not, however, the law in New York. Under New York law, the question of the existence of a "[d]uty in negligence cases is [not] defined ... by foreseeability of injury." . . . . Rather, the determination of the existence of a duty is a decision of public policy that the New York Court of Appeals has expressly retained for itself (and the courts generally).” Supp 16-17

“Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy- laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration.” Supp p. 17.

This does not mean that the court is required--or even permitted--to weigh such policy considerations to determine the existence of a duty in each individual New York negligence case. Once the New York Court of Appeals has established that the relationship between plaintiffs and defendants in certain circumstances or categories of cases suffices to establish a duty of due care, all cases of like kind are covered by that finding, and there is no warrant to take a case from the jury for a separate judicial examination of duty.” Supp. p. 17.

Calabresi is making a series of claims. One is a descriptive claim about the scope of the negligence action in many states (but not NY): “a general duty to refrain from causing foreseeable and unreasonable harm is assumed to exist.”

“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)(2011).

“An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability . . . .” Third Restatement § 6.

Duty if action creates a foreseeable and direct risk of physical harm to another if the action is done carelessly

Duty if conduct creates a risk of physical harm

Liability for carelessly caused harm

Calabresi also is making a claim about the proper form of duty determinations. They are done by a categorical rule or standard that applies beyond the immediate case.

This does not mean that the court is required--or even permitted--to weigh such policy considerations to determine the existence of a duty in each individual New York negligence case. Once the New York Court of Appeals has established that the relationship between plaintiffs and defendants in certain circumstances or categories of cases suffices to establish a duty of due care, all cases of like kind are covered by that finding, and there is no warrant to take a case from the jury for a separate judicial examination of duty.” Supp 17.

“An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care in inapplicable.”

Restatement Third, Torts (2011) § 6

a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

b) In exceptional cases, when an articulated countervailing principle or policy warrants denying liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Third Restatement § 7

No-duty or limited-duty rules are the exception.

They require special justification by an “articulated” principle or policy.

This is not done case by case, but for “a particular class of cases.”

A special no-duty or limited duty rule must satisfy both substantive and formal desiderata (“things to be desired”).

Substantive—Do reasons of policy or fairness justify a special rule in this category cases?

Formal—Is the rule clear? Is the rule coherent? Does it admit to consistent application?

Finally Calabresi says this about the purpose of negligence law . . . (Supp 17)

The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs are limited to a controllable degree. . .the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy- laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration. Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis.