Duty Generally I. Duty For Risk Defendant Did Not Create (i.e. Affirmative Duties) A.

No General Duty To Act 1. A person generally cannot be liable in tort solely on the grounds that he has failed to act 2. No Duty to prevent the injury 3. No Duty to warn 4. No Duty to provide aid to injured B. Exceptions 1. Special relationships a. Carrier Passenger b. Employer Employee c. Parent Child d. Innkeeper Guest e. Business Owner Patron f. Landlord - Tenant g. Doctor Patient h. School Students i. Custodian Those in its custody 1. If the custodian is required by law to take custody or voluntarily takes custody of the other and the custodian has a superior ability to protect the other 2. Defendant and Victim as Co-venturers a. Duty may be found when Defendant and victim are engaged in a common pursuit 3. Voluntary Undertaking a. Assumption of Duty 1. Once a Defendant voluntary begins assistance they must proceed with reasonable care 2. Cannot discontinue aid if doing so would leave the plaintiff in a worse position than he was in when the defendant began assistance b. What constitutes an undertaking 1. Assurance or representations of safety 4. Special Relationship: extension to third-Parties a. Duty to warn if there is a identifiable third party 1. Would a reasonable person have warned? II. Duty For Risks Created By Defendant A. Broad Duty Rule 1. Theres a duty to use reasonable care to prevent foreseeable injury

III. Duties of Landowners and Occupiers Definition Trespassers No permission Duty for Condition of Land No duty Exceptions: boobytrap Attractive nuisance Duty to use reasonable care regarding known dangers Duty to use reasonable care regarding known dangers or those revealed by inspection (make condition safe) Duties for active operations None

Licensees

Permission, but no material benefit Permission, and for material benefits; or thrown open to the public

yes

Invitees (generally commercial)

yes

IV. Governmental Immunity A. Discretionary Functions (Immunity from Tort) 1. FTCA Test a. Conduct involves an element of judgment or choice; AND b. Whether that judgment involves considerations of social, economic, and political policy. B. Ministerial Functions (No Immunity from Tort) 1. A ministerial act or duty is a function performed without the use of judgment by the person performing the act or duty. a. Premises liability, daily operations not involving policy making judgment (e.g. failure to fix a pot holes)

V. Duty For Negligent Infliction of Emotional Harm A. Physical Impact 1. If D causes physical impact to Ps person, D is liable not only for the physical consequences of that act but also for all of the emotional/mental suffering which naturally flows from it B. Mental Suffering Without Physical Impact 1. No Physical Symptoms a. Nearly all courts deny recovery b. Exceptions: 1. Special circumstances like funeral homes and handling corpses 2. Physical Injury without impact a. Occurs when Ds negligent act 1. Physically endangers P 2. Does not result in physical impact on P 3. Causes P to suffer emotional distress that has physical consequences b. Nearly all courts allow recovery 3. Fear for others safety a. Zone of Danger Rule 1. Fright has to result in subst. bodily injury or sickness 2. Fright from a reasonable fear of immediate personal injury b. Restatement view 1. One may recover for seeing a member of his immediate family hurt in his presence 2. Must still be in danger of physical harm c. Limited Foreseeability: The Dillon Rule 1. P may recover if, a. P observes the danger or injury to X, b. P experienced shock/emotional distress; AND c. X is a close relative of P i. P may recover even if P was never in physical danger VI. Duty for Negligent Infliction of Economic Harm A. Traditional Rule 1. Where D tortuously causes physical injury or property damage to X, but only pure economic loss to P, the traditional rule is that P may not recover anything B. Modern Approach 1. Factors In Awarding Recovery a. The injury to P was foreseeable b. Relatively few plaintiffs would be permitted to sue if liability was found c. Ds conduct is relatively blameworthy