Did the shock result from direct emotional impact from watching the accident? can’t hear about it – Was there a close relationship between and the injured party? no gay Π – people Thing factor emotional distress must be beyond that of a disinterested – witness RAE factor allows recovery for physical harms but not mental problems – Distribution 2 states use test” “impact 10 states use of danger” “zone 29 states use Dillon 3 states go beyond AFFIRMATIVE DUTIES Analysis Statutory duty is there a COA built into statute creating affirmative duty? – Common law misfeasance vs. nonfeasance – Malice always a duty against willful misconduct – Misfeasance vs. Nonfeasance has duty to harm others, but no affirmative duty to help – Δ Π Duty to Rescue Generally is no duty to rescue – Hurley v. Eddingfield Doc refuses to help patient – Some states have affirmative duty statutes when risk/cost is to Δ Duty based on prior conduct (Tort Exception) There is a duty on who has created a risk and is in a position to mitigate through Δ reasonable care Montgomery v. Nat Convoy and Tucking Co trucks stall blocking icy road, – don’t set flares cannot interfere with ability to receive assistance cannot begin rescue and Δ Π’s – then discontinue aid leaving in worse condition Π Special Relationships duty to control acts of 3rd parties – Generally: RST §315 no duty to control 3rd party unless (1) special relation exists – between actor and 3rd person imposing a duty to control 3rd’s conduct or (2) special relation exists between 3rd and which gives a right to protection Π Π Weirum v. RKO General Inc DJ encourages idiots to race to location – Landlord/tenant Consider totality of circumstances (Kline v. 1500 Mass Ave) – Duty precautions are proportionate to risk – Did precautions lapse over time? Common area vs. Private area Causation In fact do we know identity of intruder/mode of attack? Would precautions – have mitigated the harm? COUNTER-FACTUAL Proximate Foresight was this a foreseeable harm? – Did conduct contribute to the harm? Π’s
Did the shock result from direct emotional impact from watching the accident? – can’t hear about it Was there a close relationship between Π and the injured party? – no gay people Thing factor – emotional distress must be beyond that of a disinterested witness RAE factor – allows recovery for physical harms but not mental problems Distribution 2 states use “impact test” 10 states use “zone of danger” 29 states use Dillon 3 states go beyond AFFIRMATIVE DUTIES Analysis Statutory duty – is there a COA built into statute creating affirmative duty? Common law – misfeasance vs. nonfeasance Malice – always a duty against willful misconduct Misfeasance vs. Nonfeasance – Δ has duty to harm others, but no affirmative duty to help Π Duty to Rescue Generally – is no duty to rescue Hurley v. Eddingfield – Doc refuses to help patient Some states have affirmative duty statutes when risk/cost is to Δ Duty based on prior conduct (Tort Exception) There is a duty on Δ who has created a risk and is in a position to mitigate through reasonable care Montgomery v. Nat Convoy and Tucking Co – trucks stall blocking icy road, don’t set flares Δ cannot interfere with Π’s ability to receive assistance – cannot begin rescue and then discontinue aid leaving Π in worse condition Special Relationships – duty to control acts of 3rd parties Generally: RST §315 – no duty to control 3rd party unless (1) special relation exists between actor and 3rd person imposing a duty to control 3rd’s conduct or (2) special relation exists between 3rd and Π which gives Π a right to protection Weirum v. RKO General Inc – DJ encourages idiots to race to location Landlord/tenant – Consider totality of circumstances (Kline v. 1500 Mass Ave) Duty – precautions are proportionate to risk Did precautions lapse over time? Common area vs. Private area Causation In fact – do we know identity of intruder/mode of attack? Would precautions have mitigated the harm? COUNTER-FACTUAL Proximate – Foresight was this a foreseeable harm? Did Π’s conduct contribute to the harm?
Torts_Epstein_Fall_2011.docx