ot cause or bring about. arn him of the dangers of teh r now. Ct held P'and that emotional dis Buch v. Amory Manuf. Co. (NH 1897)- [Duty to Warn] Buch/P was an 8 yr old boy who trespassed onto Amory/Def’s mill where dangerous machinery was in operation. One overseer ordered P to leave the mill but P didn’t understand English and thus didn’t leave. No other attempts were made to remove P from the mill. While P’s brother, who worked there, was teaching him how to operate one of the machines P’s hand got entangled in the machinery and was crushed. P sued for damages- Ct denies Def’s DV motion—Def appeals. Judgment for P Reversed.
Does a landowner have a legal duty to warn an infant trespasser of patent dangers on his land? [NO]
Rule= Infants are liable for their trespasses; Property owners have no duty to warn infants of apparent dangers they cannot comprehend.
Rule= Property owners are not required to warn adults of latent dangers, thus no duty to children either. A property owner is under no obligation to come to the rescue of a stranger/trespasser on his land.
The attractive nuisance doctrineis not applicable to machinery in a factory. The landowner is not obligated to shut down his mill in order to protect a trespasser.
Miles- The negligent act here was that the Def failed to effectively get the boy off of their property. The ct notes various hypothetical situations (such as baby is left sitting by railroad) that demonstrate that one’s duty to aid the children stems from a moral obligation, but no legal duty.
Hurley v. Eddingfield (IN 1901)- Appellee was a Dr. at Mace hospital and duly licensed under State law. He was a general practitioner; had been the decedent’s family Dr. Decedent became very ill and sent someone to pay the Dr and inform him his assistance was needed b/c no other help available. The Dr/appellee wasn’t busy but refused to render aid to decedent. Death ensued. The wrongful act here was Def’s refusal to enter into a contract of employment w/ P. Appellant/Family sued appellee/Dr. for $10,000 in damages for wrongfully causing death of his intestate. Judgment for Def Affirmed.
Rule= Licensed physicians don’t have duty to treat all who request their services.
Miles- this case is very similar to the case Professor Ames cites in his article where a Dr. in India refuses to travel across country to treat a patient even though he is told that he is the only one who can treat the patient. The rule proposed by Ames is very similar to the J. Learned Hand rule from Carroll towing case, and Ames asserts that if one can assist another w/out any great inconvenience then they have a duty to assist, and if they don’t they can be criminally punished.
The modern argument is that if a Dr. wants a license to practice medicine, they have a duty to provide care/treatment when they can.
Note Case-Yania v. Bigan (PA 1959) this case shows cts hostility toward affirmative duties. P filed wrongful death claim after decedent visited Def’ strip mine for business and jumped in the cut of water and drowned. P claims Def enticed Yania to jump, failed to warn him of the dangers of the cut, and that Def had a duty to rescue Yania. Ct dismissed all three parts of the claim (since Yania is in the same business he was or should have been aware of the dangers).
*Ames, Law and Morals (1908)-The law is utilitarian- thus if the interest of an indiv runs counter to this chief object of the law, it must be sacrificed…this is why the innocent suffer (as in the Yania case). As the law stands today if one is not responsible for the peril, and does nothing to increase it, he has no legal liability to assist the stranger. The law does not compel active benevolence. Should one have duty to give aid to another?
Ames proposes a new working rule—“one who fails to interfere to save another from impending death when he might do so with little or no inconvenience to himself, and death or harm follows as a consequence of his inaction, shall be punished criminally and shall compensate the party injured…”
Epstein, A Theory of Strict Liability-Epstein notes that in Ames’ Good Samaritan rule Def would be required to act only when it would be little or no inconvenience to do so. Epstein notes that to enforce that rule it would be hard to est. what amts to an inconvenience (would one be compelled to give $10 to a charity?).
Epstein- such a theory must regard individual autonomy as but a means to some social end; to use the GS rule would be difficult in practice b/c it would be very hard to set out in a principled manner the limits of social interference with individual liberty.
“Once forced exchanges are accepted, it will no longer be possible to delineate those activities in which contracts (or charity) will be required in order to procure desired benefits and those activities in which those benefits can be procured as of right.”
*Posner, Epstein’s Tort Theory: A Critique (1979)-Posner notes that tort duties can sometimes be viewed as devices for vindicating the principles that underlie the freedom of contract—one may argue that the contract analogy is not applicable in the bystander aid cases b/c the bystander would not be compensated—but this overlooks fact that the consideration is not the payment for rescue but rather a commitment for the party in need to reciprocate should the roles be reversed and the bystander need aid.
*Bender, A Lawyer’s Primer on Feminist Theory & Tort-Feminist Ethic of caring, responsibility interconnectedness, and cooperation—how does this influence the drowning stranger hypothetical? Bender notes that if the stranger drowns, many will be affected…he is interconnected w/others thus mores is at stake than just the immediate harm to P—thus these affirmative duty cases should not be viewed as isolated events where we balance one person’s interest w/another’s affirmative duty to assist another.
*Misfeasance vs. Nonfeasance & Good Samaritan Doctrine-one must distinguish between nonfeasance and misfeasance- between failing to act and acting negligently. Though a person may be under no duty to take affirmative action in the first instance, if he undertakes assistance and thereafter is negligent in what he does or does not do, he is liable.
Montgomery v. National Convoy & Trucking Co. (1937)-[Misfeasance] Trucks owned and operated by National Convoy/Def stalled on an icy highway and blocked the entire road. The trucks were stalled at the bottom of a hill on a well traveled road. Vehicles coming down couldn’t see the trucks. The Def’s were not negligent in causing the trucks to stall but failed to place any warning signals except in the immediate area of the trucks. P/Montgomery came over the hill and started down and due to a curve in road and the icy condition of the road P was not able to see and stop before crashing into the trucks. Judgment for P Affirmed- Def negligent for failing to provide adequate warning.
Rule= one may be negligent by acts of omission as well as of commission, and liability therefore will attach if the act of omission of a duty is the direct, proximate and efficient cause of injury.
Rule= Def’s employees had a duty to take such precautions reasonably calculated to prevent injury (resulting from their stalled trucks). It is not enough to make just any warning of impending danger you created, you must provide adequate warning!
Miles- Def was not negligent in blocking the road; however, they created an additional risk that est. a duty to prevent that risk from causing harm to others. Evidence est. that harm to P could’ve been prevented by warning at top of hill.
Restatement 2nd Sec. 322- Miles poses the question, would the truckers be held liable under Sec. 322? The Def created a risk of bodily harm but they did not create an actual bodily harm that “rendered a party helpless and in danger of further harm”; thus if Sec. 322 had governed it arguable that Def would not have been found liable.
2nd Restatement of Torts- sec 322- Duty to aid another harmed by actor’s conduct- If the actor knows or has reason to know that by his conduct he has caused bodily harm to another as to make him helples…the actor is under duty to exercise reasonable care to prevent such further harm.
Zelenko v. Gimbel Bros (NY 1935)-Ct held that Def initially had no duty to P, but if Def undertakes duty to assist the ill P then Def must not omit to do what an ordinary man would do in performing the task. The rule here is broader than the rule est. in 2nd Restatement Sec. 324. Here the Def chose to provide medical aid and took the ill customer, P’s intestate, to an infirmary w/out medical care instead of to a hospital. If Def had let the man alone he would not be liable, but Def is held liable b/c he put the P’s intestate in a position where he could not get other or further aid.
2ndRestatement, Sec 324- Duty of one how takes charge of another who is helpless…
Soldano v. O’Daniels (CA 1983)-Decedent was in danger of being shot at the Happy Jack’s Salon and another patron ran across street to use phone to call for help at Def’s restaurant- Def’s bartender refused to let patron use the phone and wouldn’t make the call himself. Ct held that while Def was under no duty to rescue, he did have a duty to permit the patron to place a call to the police—one is tortiously liable if he negligently prevents or disables a 3rd person form giving such aid. It is important here that the costs Def would have incurred in allowing aid or giving aid would have been very little, merely the cost of a phone call.
Section C. Duties of Owners & Occupiers:
-Arbitrary Categorization- duties are divided into arbitrary categories depending on the type of P involved.
-Persons outside of the premises- the person in possession of land is required to exercise reasonable care w/regard to her activities on the land for the protection of those outside the premises.
Natural Conditions- a landowner/occupier is not liable for damages resulting form condition on the premises arising in a state of nature
Public highways or walkways- the public right of passage on a highway carries w/it an obligation on the part of the abutting landowners to use reasonable care for the protection of those on the highway
Artificial Conditions- where the landowner/occupier creates artificial conditions on the land she is obligated to inspect them and protect v. danger to others.
-Trespassing Adults-
No Duty owed- adults that enter on land of another w/no right or privilege must take the premises as found and are presumed to assume the risk of looking out for themselves. General rule is that a landowner is not liable for injuries to adult trespassers caused by their failure to exercise due care, to put the land in a safe condition for them, or to carry activities in such a manner as not to endanger them.
Discovered trespassers- foreseeability generally does not create a duty in landowner to trespassers—but were the trespassers are known generally (even if ID or presence of the particular trespasser is not known) and the trespass occurs on a particular part of the property (walkway, path, etc) and has been tolerated, there is a tendency in the cts to treat the trespasser as a licesee, requiring landowner to warn trespasser of activities or artificial or natural conditions involving risk or harm that trespasser is unlikely to discover. Some cts limit that duty of landowner to warning only of that which could cause death or serious bodily injury.
Robert Addie & Sons (Collieries) Ltd. v. Dumbreck(1929)- [Traditional view on trespassers]Robert Addie & Sons/Def operated a haulage system to remove coal ash from mining operations. The field on which the system was located was surrounded by a hedge w/numerous gaps. The field was often trespassed onto by adults and kids. Def placed a warning sign at the gates and warned people directly, but the verbal warnings were largely unheeded. The system had a large wheel (that wasn’t visible to any workers) w/an endless wire cable passed around it; the wheel was unprotected except for some boards on top of it. There was at least an 8 inch gap between the boards and bed of ashes on the ground. Dumbreck’s/P’s son who had been warned by Def’s employees not to play on the field was killed when he got trapped in the wheel and cable assembly. P sued in wrongful death—Trial Ct Judgment for P—Def appealed asserting it had no duty of care to trespasser. Judgment Reversed.
P’s son upon entering Def’s land was either an invitee (licensee) or a trespasser. The evidence indicates he was a mere trespasser. B/c P’s son was a trespasser, Def owed no duty of care and is not liable for his death.
Rule= A property owner owes no duty of care to protect a trespasser even from concealed danger. He is liable only if he deliberately injures the trespasser. There are 3 categories by which persons visiting premises belonging to another person may fall= invitee (by invitation express or implied), licensee (w/the leave and license of the occupier), trespasser.
The rigid lines between licensee, trespasser, & invitee dictate duties owed- the highest duty is owed to invitees and landowner must take reasonable care to make sure premises are safe. With licensees the duty is less stringent and landowner doesn’t have duty to ensure safe premises, but cannot trap or conceal dangers.
Note- Modern cts that retain those distinctions would apply the attractive nuisance doctrine b/c the trespasser was a child or would hold that since trespasser was discovered a duty of care was owed.
Willful and Wanton Exception-
Excelsior Wire Rope Co v. Callan (1930)- Ct held Def liable, even though the P’s, two children, were trespassers who were injured on the Def’s haulage system, on grounds that Def’s servants acted in reckless disregard of P’s welfare (kids were constantly playing around the machines and the workers shouldn’t have started the machine w/out making sure the wire was free from kids).
Gould v. DeBeve- Ct found that even though P was technically a trespasser in Mrs. Dodd’s apartment (b/c here lease didn’t allow non family members) they found for the P b/c the Def was guilty of willful and wanton misconduct in ignoring their statutory obligation to replace the defective screen after Dodds made urgent requests for them to do so (child fell out the screen while playing by it).
Attractive Nuisance Doctrine- held that infant trespassers could recover when lured onto Def’s premises by some tempting condition created and maintained by the Def.
*Trespassing Children- except w/ extra-hazardous activities, children were treated the same as adults until 1920’s when trespassing children become a recognized special class b/c children cannot protect themselves and perceive risks, parents cannot follow their kids around all day, and maintaining an “attractive nuisance” is deemed undesirable.
2nd Restatement of Torts Sec. 339-sets out prop owners’ duty w/respect to artificial conditions= [Restatement rule on attractive Nuisance]
A property owner will be liable for injuries to infant trespassers from dangerous artificial conditions on his land under the following circumstances: 1) he knows or should have known that they aer likely to trespass upon the places where the dangerous condition is maintained; 2) he knows that the condition involves an unreasonable risk to injury to them; 3) if the child b/c of immaturity does not realize the danger involved; 4) if the utility of maintaining the condition is slight in relation to the risk of injury to children; and 5) if he fails to exercise reasonable care to eliminate the danger or protect the children.
*Licensees- a licensee is one who goes on the land of another w/ the consent of the occupier/owner, thru authority of law, or by necessity, and is deemed to take the land as the occupier uses it. Owner must warn licensee of known natural or artificial conditions involving any risk of harm that licensee is unlikely to discover. Licensee has the owner/occupier’s consent and nothing more.
Social Guest- a social guest, though invited, is only a licensee
Known danger- owner has duty to warn a licensee of known dangerous conditions that the owner cannot reasonable assume that licensee knows or can detect (or to make such conditions safe).
Duty to inspect- duty of landowner only to inspect known dangerous conditions, no duty to inspect in order to discover dangerous conditions.
*Invitees- one who goes upon the land of another w/consent of owner/occupier for some purpose connected w/the use of the premises (i.e. business or public invitee); invitor is under a duty to make a reasonable inspection of the premises and discover any dangers that may exist. Duty owed to invitee is one of ordinary care. Generally, workers under public authority who enter premises during non-business hours, such as fire fighters and postal workers are deemed licensees.
Limitations- person remains an invitee only while in the areas or parts of the premises held open to here for the purposes for which she came. If invitee goes beyond that area of invitiation, but under consent of owner, she becomes a licensee, and w/no permission she becomes a trespasser.
Reasonable care required-Def has legal obligation only to exercise reasonable care; the duty arises when danger is reasonably foreseeable and owner not required to do anything unreasonable to risk his life.
Protection v. 3rdpersons- owner/occupier must exercise his power of control over the conduct of 3rd persons to prevent injury to an invitee who may be injured by such conduct.
Rowland v. Christian (CA 1968)-[Overruling Traditional Visitor Classifications]Rowland/P was a social guest in Christian/Def’s apartment when he injured his right hand on a cracked water faucet handle in Def’s bathroom. Def knew the handle was cracked and had asked the landlord to repair it, BUT she didn’t warn P of the condition of the handle. P sued Def to recover for injury—Def moves for SJ on grounds that P was a social guest and the defense of assumption or risk and CN—Trial Judge grants Def’s motion for SJ—P appealed. Judgment Reversed.
Rule= If the occupier of land is aware of a concealed condition that presents unreasonable risk of harm to others, the land occupier’s failure to warn or to repair the condition constitutes.
In the past, common law divided a landowner’s visitors into 3 groups: invitees-business guests; licensees- social guests; and trespassers. While a landowner owed duty of ordinary care to invitees, licensees and trespassers were obligated to take the premises as they found them. (this is no longer justifiable)
Ct cites Gould v. DeBeve, in noting that cts in particular situations have chosen to reject those common law classifications and approach the issue of the duty of the occupier on the basis of ordinary principles of negligence.
Applying negligence liability equally regardless of the visitor’s status will eliminate complexity and confusion in the law. A person’s life or limb is not less worthy of protection b/c he is there w/no bus purpose or w/out permission.
Dissent= should sustain Judgment for Def b/c the majority allowed for decisions on a case-by-case basis under the application of basic law of negligence bereft of the guiding principles and precedent of tort law; furthermore such a sweeping modification falls w/in the domain of the legislature. Social guests ought to take the premises as they are, thus Def not liable.
NOTE- under the Rowland decision the same basic duty is owed to trespassers as to invitees; this has been problematic. Recently, many states have enacted statutes to protect landowners form nonpaying guests and trespassers where the landowner has not acted w/willful disregard of others’ rights.
Miles- CA Supreme Ct took a leading position re: court law and duty to aid; now other cts in position to decide whether or not to follow—some follow, some don’t, some take an in between position—but the law hasn’t evolved to a new position.
Miles—Foreseeability test & Proximate Case-What is the rationale of foreseeability? How does it advance the purpose of tort law- the efficient allocation of damages?
If we do hold one liable for what is unforeseeable this does not result in the party changing the way they act (i.e. take more precaution) rather it just results in a pure transfer (it just makes the party pay for another’s damages)—
Pure transfers are inefficient b/c all they do is draw resources into the court system and litigation, it does not work to efficiently allocate damages where they are due.
But what if we implemented a Directness rule—where party is forced to pay for all consequences directly caused by their negligence, whether foreseeable or not
This rule would be beneficial in that it would save us the cost of litigation—Directness rule leads to quick, easy way to allocate damages!
*Various types of arguments re: Duty to aid others=
Moral Argument- the Bible est. the Good Samaritan doctrine- we have a moral duty to aid those in need.
Rights-Based Argument- Epstein argues that the decision to give aid to another is a right that one should be able to choose whether to exercise or not.
Yania v. Bigan- ct held that Def was not liable even though Def enticed and taunted Yania to jump into the water b/c Def’s conduct was not to the extent that it restricted Yania’s freedom of choice.
Notion of indiv. Autonomy; taking responsibility for one’s action
Epstein also offers notion that Notion that there is no need to create a legal duty b/c people will help others w/out a legal duty to do so, people will act out of a sense of a moral duty to do so.
Administrability Argument- est. a reasonable legal duty will be too difficult b/c it will be hard to draw the line.
Epstein makes a slippery slope argument that if we est. a legal duty we face possibility that it will be very difficult to est. what is reasonable and draw the line
Consequential Argument- look at the consequences…
On this issue Posner agrees w/Epstein on one level, in that we need individual autonomy asserts that but if the real world there are transaction costs and we cannot all sit down and contract re: duties to act, thus we need a default rule that guides how we act in these types of situations. We need a rule that enforces duty and a resulting liability if fail to meet that duty.
Posner asserts that re: the notion of contracting for duty to aid, the consideration for the rescue is not payment when the rescue is effected, rather it is effected by a commitment to reciprocate should the roles of the parties some day be reversed.
Epstein would likely respond w/we do not need contracts
Alternative—assert that as a matter of policy people should get assistance, i.e. the government should est. a policy of Universal healthcare funded by increased taxes. This shifts the policy into the world of the legislature.
Today, there is indication that we have shifted the problem (re: duty to give aid) out of the legal scope and back into policy; we often leave the duty to aid to municipalities- police officers, firefighters, etc.
