> ## Documentation Index > Fetch the complete documentation index at: https://lawmaxxing.com/llms.txt > Use this file to discover all available pages before exploring further. # Negligence: Duty of Care > Session 13 # Negligence: Duty of Care ## 1. Establishing a Duty ### Black Letter Law / Rule To establish a Prima Facie case for Negligence, the plaintiff must prove four elements: Duty, Breach, Causation, and Damages. For the first element, **Duty**, there are three specific pathways to prove its existence: 1. **Affirmative Act creating Risk:** When a defendant engages in an activity that increases the risk of physical harm towards **foreseeable plaintiffs**, the defendant owes a duty to act as a reasonable, prudent person under the circumstances. * **Foreseeable Plaintiff:** Someone located within the "Zone of Danger". * **Zone of Danger:** Defined as the area of increased risk of physical harm. 2. **Negligence Per Se:** Violation of an applicable statute (usually criminal) establishes a presumption of the existence of a duty and breach thereof. 3. **Privity of Contract:** A duty is established via a contractual relationship between the parties. ### Nuance & Policy * **Litigation Strategy:** Never rely solely on "No Duty" as a defense. A competent attorney argues all elements (Duty, Breach, Causation, Damages) because if the court finds a duty exists, relying only on that single defense will result in a loss. * **Duty as a Limiting Tool:** Duty functions as a liability-limiting tool for courts. *** # Privity and Product Liability ### Black Letter Law / Rule Historically, duty was limited to those in **Privity of Contract** (e.g., *Winterbottom*). However, modern law has eliminated both **vertical** and **horizontal** privity as requirements for finding a duty of care in negligence regarding defective products. * **Vertical Privity:** The chain of distribution (Manufacturer -> Wholesaler -> Retailer -> Consumer). * **Horizontal Privity:** The relationship between the buyer and others who might use the product (e.g., a guest, a passenger). ### Key Cases * **MacPherson v. Buick Motor Co.** * **Facts:** Buick manufactured a car with a defective wooden wheel. The wheel collapsed, injuring the plaintiff (who bought the car from a dealer, not Buick directly). * **Holding:** A manufacturer owes a duty of care to foreseeable users (consumers) even without privity of contract. By engaging in the activity of manufacturing and putting a defective product into the stream of commerce that increases the risk of physical harm, a duty is created. * **Winterbottom (Common Law Context)** * **Facts:** A mail carrier was injured by a defective carriage but was not the one who contracted for its repair. * **Holding:** Under old common law, no duty was owed because there was no privity of contract between the repair shop and the mail carrier. *** # Feasance: Classifications of Conduct ### Black Letter Law / Rule Attorneys must distinguish between three types of conduct regarding duty: 1. **Malfeasance:** Performing an act that is illegal or wrongful (e.g., setting a fire). 2. **Misfeasance:** Performing a legal act improperly or inadequately, which causes harm (e.g., medical malpractice, fixing brakes incorrectly). 3. **Nonfeasance:** Failure to act when there was a duty to act. ### Key Cases * **H.R. Moch Co. v. Rensselaer Water Co.** * **Facts:** A water company contracted with the city to provide water. A fire occurred at plaintiff's warehouse, and there was insufficient water pressure to stop it. Plaintiff sued the water company. * **Holding:** The water company was not liable. This was **nonfeasance** (failure to confer a benefit). The contract was with the city, not the resident; failure to provide sufficient pressure is a denial of a benefit, not the commission of a wrong. *** # Foreseeability and Duty (Firearms) ### Black Letter Law / Rule Mere ownership of a firearm does not automatically create a duty of care to third parties to prevent others from using it. Foreseeability is the test for duty, but it requires recognizing an **undue risk**, not just that a specific mechanism of harm is *possible*. ### Key Cases * **Brown v. Kerr** * **Facts:** Defendants' son stole a gun from their locked cabinet and shot his friend. Parents knew the son had previous behavioral issues (stealing meds) but didn't think he had a drug problem. * **Holding:** The parents owed no duty. It was not foreseeable that the son would take the gun and shoot someone merely because they owned a gun. Guns are not inherently dangerous instruments when sitting stored. ### Hypotheticals & Examples * **The High & Angry Son:** If the parents saw their son was high and angry at his friend, and *then* left a loaded gun on the kitchen counter, the court would likely find a duty. The specific facts make the harm foreseeable. *** # Social Host Liability ### Black Letter Law / Rule A social host owes a duty of reasonable care to third parties if they serve alcohol to a guest knowing that the guest is intoxicated and will effectively be operating a motor vehicle. ### Key Cases * **Kelly v. Gwinnell** * **Facts:** A host served a guest drinks. The guest drove home intoxicated and caused a head-on collision with the plaintiff. * **Holding:** The host is liable. Serving alcohol to an intoxicated guest who is known to be driving increases the risk of physical harm to foreseeable plaintiffs (other drivers/pedestrians). ### Nuance & Policy * **"Pick Your Poison":** A host might fear being sued for "False Imprisonment" if they take a guest's keys or physically stop them. However, legally and ethically, risking a false imprisonment claim is preferable to the liability and moral cost of the guest injuring or killing someone. *** # Duty to Warn / Continuing Duty ### Black Letter Law / Rule If a defendant's prior conduct (even if non-negligent at the time) creates a continuing risk of harm, the defendant owes a continuing affirmative duty to warn or rescue the plaintiff once the risk is discovered. ### Key Cases * **Trezmer v. Barke** * **Facts:** Doctor implanted a Dalkon Shield. At the time, it was considered safe. Years later, it was found to be dangerous. The doctor failed to warn the patient. * **Holding:** The doctor owed a duty to warn the patient of the newly discovered risk. *** # Duty of Universities (Moral vs. Physical Safety) ### Black Letter Law / Rule Universities generally assume a duty regarding the **physical safety** of students in controlled areas (like dorms). However, they owe **no duty** to protect adult students from "moral decay" or the social influences/activities of their peers off-campus. ### Key Cases * **Hegel** * **Facts:** Parents sued a university alleging it failed to protect their daughter from falling into a "low life" and bad influences. * **Holding:** The university was not liable. Protection from assault/robbery is a distinct legal duty from protection against moral failure or social vices. *** # Duty to Rescue / Aggravation of Injury ### Black Letter Law / Rule **General Rule:** There is no general duty to rescue a stranger in peril. **Exception:** If the defendant controls the instrumentality causing the injury, or has a special relationship, a duty arises to take affirmative steps to prevent **aggravation** of the injury. ### Key Cases * **L.S. Ayres & Co. v. Hicks** * **Facts:** A 6-year-old boy got his fingers caught in a department store escalator. The store delayed shutting it down, aggravating the injury. * **Holding:** The store was not liable for the *initial* injury (finger getting caught) but was liable for the *aggravation* of the injury because they controlled the escalator (instrumentality) and failed to stop it reasonably quickly. *** # Duty to Third Parties (Mental Health Professionals) ### Black Letter Law / Rule While doctor-patient confidentiality is a strong privilege, it is overridden when a therapist determines (or should determine) that a patient poses a **serious danger of violence** to a specific third party. In such cases, the therapist owes a duty to warn the intended victim or law enforcement. ### Key Cases * **Tarasoff v. Regents of University of California** * **Facts:** A patient (Poddar) told his psychologist at UC he intended to kill Tatiana Tarasoff. The police released him; he later killed her. No one warned Tatiana or her parents. * **Holding:** The university/therapists were liable. Protective privilege ends where the public peril begins. This created the requirement for "Tarasoff Warnings". *** # Pure Economic Loss (The Physical Impact Rule) ### Black Letter Law / Rule **The Physical Impact Rule:** In the absence of physical impact (to the plaintiff's person or property), there is **no duty of care** for pure economic loss. ### Hypotheticals & Examples * **The 101 Freeway Crash:** * **Scenario:** Driver A negligently rear-ends Driver B. This causes a 3-mile traffic jam. A florist 1 mile back is stuck for 2 hours, and \$10,000 worth of flowers wilt (economic loss). * **Outcome:** Driver A is liable to Driver B (physical impact/injury). Driver A is **not** liable to the Florist. Although the loss was foreseeable and caused by the negligence, duty cuts off liability because there was no physical impact to the florist. *** # Pure Emotional Distress (Preview) * **Note:** While discussed briefly, the main cases for *Pure Emotional Distress* (as opposed to economic loss) are **Daley** and **Thing**. These govern negligent infliction of emotional distress (NIED) and third-party bystander recovery.