*Section D. Gratuitous Undertakings:
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Coggs v. Bernard (1703) - [Volunteers] Def voluntarily agreed to move casks of brandy belonging to P. No consideration was given, and while moving them, the casks were damaged. P sued for damages. Def appealed Judgment for P alleging that he was not a common porter, thus lack of consideration should absolve his liability.
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Rule= Any person who undertakes to do something for another, whether he is a common carrier or not, is liable for damages caused by his negligence
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P entrusted Def w/certain goods. Def accepted that entrustment by undertaking what was agreed between the parties. If Def had not undertaken to move the casks the damage would not have occurred.
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Miles- Assumpsit-deals w/breaking of a promise (indicates this is or resembles a contracts case). Here there is a bare promise b/c there is no consideration, thus no valid contract.
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Can also view this case as a Bailment case- where one gives up possession of their goods for the purpose of having another take care of them and transport them to another place. Miles notes that we can view this case as a tort, contract, or Property case!
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NOTE- the key issue is consideration here and ct finds that consideration can be found in a gratuitous transaction.
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Thorne_v._Deas_(NY_1809)'>Thorne v. Deas (NY 1809)- P was captain of ship and before he left for voyage he asked Def/co-owner to insure the ship before they left. Def told P to go ahead and sail and that he would insure the ship on P’s departure. P relied on Def’s promise, the ship subsequently wrecked and Def had failed to insure it. Ct denied recovery for P who had brought an action on the case for non-feasance b/c of lack of consideration for the promise.
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Ct held no liability & denied recovery. P brought this as a contract case for nonfeasance and Ct notes that it would be wrong to deny a contract claim and then allow a tort claim b/c then P’s will always just bring a tort claim for contract issues…“the law could not first deny recovery for breach of promise unsupported by consideration and then turn around and allow recovery on the same facts by calling Def’s conduct a tort.”
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BUT Ct notes that they would allow P recovery if P showed that Def had engaged in misfeasance by starting to perform and then did so negligently—thus if Def had started to file the insurance papers but never completed them P could recover b/c of negligence, but since Def never even commenced to file the papers, no recovery. Therefore, Thorne offers new test, asks what actions did Def take—the test is commencement of action [in Coggs the test was consideration]
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Miles- we need a more conclusive test, thus look to– Restmt of Contract Sec. 90- Promissory Estoppel
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Reliance- Miles notes that reliance aggravates loss, and Prof Seavey notes that Estoppel arises as a tort principle that is really about restoring what was lost when one relied to their detriment on what Def promised.
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Does PE apply to Coggs? To apply PE one could assert that there was a lost opportunity for P to hire someone else and that P had relied on Def’s performance
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Promissory Estoppel-2nd Restatement Sec. 90-… Estoppel is a tort doctrine- rationale is that Def should pay for harm caused by foreseeable reliance upon Def’s promised performance. The wrong is not in depriving P of promised reward, but in causing P to change position to his detriment.
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Erie RR v. Stewart (6th Cir 1930) - [Reliance on Volunteer] Stewart/P was a passenger in a truck at a grade crossing by Erie/Def’s train. Def was not required by statute to have an attendant at the crossing to warn of approaching trains. However, Def voluntarily had stationed an attendant at this crossing and P knew of this. The attendant was not present at this time, thus failed to warn and P’s truck was struck by Def’s train. P sued for negligence. Judgment for P Affirmed.
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Rule= If the RR Co. est. for itself a custom of duty of care and travelers relied on that custom (this implies invitation and assurance of safety by Def), the Co. will be held liable for injury if it negligently performs or w/draws the service w/out proper notice.
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P relied on Def’s custom of having an attendant at grade crossing when a train was coming, thus negligence can be inferred as matter of law. If the traveler is not aware of the custom, then no negligence claim allowed.
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Dissent= Here J. Tuttle wants the litigation to proceed differently and make it easier for P by asserting that whether or not the P really relied on the Def’s attendant is really an issue for the Def to have to prove and not P (majority had est. that to recover P had to prove that 1) Def est a custom and 2) that P actually relied on it).
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Miles- the key test here is commencement, and here the Def had taken action and est. a custom of having an attendant on duty.
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Marsalis v. LaSalle (1957) - [Misfeasance Mrs. Marsalis/P relied on Lasalle/Def’s promise to keep his cat locked up (to allow time to determine if the cat was rabid) after it had bitten/scratched P while she was shopping in Def’s store. Def then allowed the cat to escape (was gone about 1 month). P sought medical advice for fear of contracting rabies, led to Dr. Kirgis giving P the Pasteur treatment himself. P was allergic to the serum and suffered noxious reaction and ill effects. P filed claim v. Def for personal injuries, P’s husband seeks reimbursement for medical expenses. Judgment for P.
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Rule= one who voluntarily undertakes to care for or assist an ill, injured, or helpless person is under legal obligation to use reasonable care and prudence.
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Def held liable for misfeasance—Ct Ct held that Def was not negligent merely b/c cat bit P; rather, once Def promised to restrain his cat, he was bound by to duty to use reasonable care and prudence…and P, in good faith, relied upon Def to carry out the agreement which he voluntarily made.
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NOTE- the old rule was that a mere gratuitous promise to render service, even if P relied on it, created no duty.
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Miles- Rstmt Sec. 323—here the test is was there an increase in the risk of harm relative to the state of the world in which the promise was made—Restatement’s approach is thus similar to the approach taken here in this case by emphasizing the 2 elements= 1) failure to exercise care which increases the risk or harm; 2) harm due to reliance upon the undertaking
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2nd Rstmt Torts Sec. 323= “Negligent Performance of undertaking to render services”=one who undertakes gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care, if a) his failure to exercise such care increases the risk of harm; or b) the harm is suffered b/c of the other’s reliance upon the undertaking
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Recap- Tests used to est. Liability Re: Gratuitous undertakings:
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Did they promise?- promise not enough b/c under contracts you need consideration
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Is consideration sufficient?- no, this seemed to malleable b/c consideration could be manipulated
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Commencement? Has Def taken action?-(this approach taken in Thorne, Montgomery cases)
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Reliance & Promissory Estoppel (Restmt Sec 90 & Sec 323)? (approach taken in Stewart and Marsalis
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Moch Co. v. Rensselaer Water Co. (NY 1928)- [Duty to 3rd party]- Rensselaer Water Co./Def contracted w/city of Rensselaer to provide water for service at fire hydrants (among other purposes). It spec. agreed to provide certain amts of water at a certain pressure to the fire hydrants. A fire broke out at a building near Moch/P’s warehouse. Def was notified of the fire in timely manner, but failed to provide either the qty or pressure of water that it contracted for and that could stop the fire before reaching P’s warehouse. The fire spread and destroyed P’s warehouse. P sued for damages alleging 3 alternative theories: 1) breach of contract (under Lawrence v. Fox); 2) common law tort (under MacPherson v. Buick Motor Co.); 3) Breach of a statutory duty—
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Rule= a 3rd party beneficiary cannot recover for damages caused by a promisor’s failure to perform his contractual obligations to another party
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1) No cause of action under breach of contract- Def had contract w/city, no contractual liability to 3rd party b/c parties to the contract didn’t intend that Def should be liable to each indiv member of the public.
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2) No action for common-law tort- Def’s failure here to furnish an adequate supply of water was at most a denial of a benefit, not a commission of a wrong.
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3) No action for statutory duty- Ct finds nothing in the requirements of the statute that extend liability when a 3rd person in city suffers indirect or incidental damage. A breach of duty is to the one to whom service is denied at the place where service is due—denial does not give a cause of action to another.
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The Privity limitation & Moch case- Prof Gregory defended Moch on the grounds that it placed the burden of the loss on the Fire Insurance Co.’s who would otherwise assert their subrogation rights v. the water company. If liability had been assigned to the Water Co. they would turn around and charge higher rates to consumers—
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Miles- If Ct held Water Co. liable to pay for restoration of the house we essentially are asserting that they are selling 2 products, the water service and insurance
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Miles- the ct gets it half right here—if we assume the home owners have sought fire insurance, they are not going to file their claims v. the Insur. Co., rather they file the claims v. the water company…thus, the opinion is wrong in asserting that first party insurers would be forced to pay twice.
Section E. Special Relationships:
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2nd Restatement of Torts- §315 General Principle- There is no duty to control conduct of 3rd person as to prevent him from causing physical harm to another unless a) a special relation exists between the actor and 3rd person which imposes a duty upon the actor to control the 3rd person’s conduct; or b) a special relation exists between the actor and the other which gives the other a right to protection.
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§315 sets out the general rule that there is no duty to control conduct of a 3rd person so as to prevent him from causing physical harm, w/2 exceptions (unless a special relationship exists between actor and 3rd person OR special relations btwn actor and the other which gives him a right to protection)
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Wierum RKO General Inc (CA 1975)- Def’s disk jockey staged a contest where contestants had to rush to the local he as at to answer questions to win a prize Two teens got into a drag race in trying to get to the locale first. Decedent was killed when his car was forced off the highway. CA Supreme Ct reinstated Judgment for P b/c (the Sup BUT the complaint here if for misfeasance and the question of duty is est. by a std of ordinary care—thus, Def’s liability is due not to failure to intervene but for creating an unreasonable risk of harm to decedent).
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Miles- The Ct imposes liability on the radio station but asserts that this does not imply a sweeping change in the law b/c the distinction here is that Def was causing contestants to rush to various locals and was not a commonplace invitation.
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Misfeasance v. Nonfeasance- The exception to the no duty rule is misfeasance- In Wierum case (where the radio station was held liable) we saw how if one takes action and fails to take reasonable care then they can be held liable for misfeasance.
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The argument is made that by asserting this (liability for misfeasance) courts are “Hurting those you are trying to help”;
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Moral argument- This argument is made on the basis of morality/rights…
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Consequences argument- This argument is also made based on consequences—
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Consumers- the consequence for consumers will be that they will end up paying hire prices b/c if landlords/producers held liable they will pass on the cost through higher prices for consumers
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Producers- to prevent liability they will face increased costs and may not be able to pass on all of those costs to consumers for fear of losing those consumers, thus they will face increased costs
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Kline v. 1500 Massachusetts Ave Apt Corp (DC Cir 1970)- [landlord tenant] P was attacked in common hallway at her Apt building; her landlord had greatly decreased security over the years.
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Rule= General Rule exonerates a 3rd party from protecting another from criminal attack—but this is not applicable to the landlord-tenant relationship in multiple dwelling houses. Since the landlord is the only one in the position to take the necessary acts of protection required, while not an insurer, he is obligated to minimize the risks to his tenants—landlord has duty to protect tenants from foreseeable criminal acts of 3rd parties!
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Std of Care- Ct held the applicable std of care in providing protection for the tenant is the std which the landlord had employed in Oct 1959 when the P/appellant became a resident there; Ct held that the same relative degree of security should have been maintained.
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Wassell v. Adams (7th Cir 1989)- Contributory Negligence- P claims Def/motel operator failed to warn her that the motel was in a high-crime area. J. Posner held that full liability shouldn’t be extended here b/c one should know that they shouldn’t open their hotel door to a stranger in the middle of the night. The P here was contributorily negligent and thus was allowed only limited recovery.
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Rule= essentially the ct is limiting the duty owed by the Motel by asserting that individual’s cannot hold Motel liable when they’re CN!
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Tarasoff v. Regents of Univ of California (CA 1976)- [Psychotherapists] Poddar was a patient of the psychiatrists at the Univ/Def’s hospital. He told Dr. Moore/Def that he was going to kill Tatiana. The Dr. had Poddar detained by the police but he was eventually released b/c he seemed rational. The psychotherapist’s superior at the hospital informed him that he should initiate no further action to detain Poddar. No one informed Tatiana about the threat to her life. In Oct. 1969, Poddar killed Tatiana. Tatiana’s parents/P’s sued the University Regents, the psychotherapists, and the campus police on 4 different negligence theories. P’s claims were based on Def’s failure to warn P of the impending danger and failure to detain Poddar. Did the Dr. have a duty to warn? [YES]
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Rule= The general rule is that a 3rd party is not liable for the actions of a tortfeasor, unless the 3rd party has a special relationship w/the tortfeasor or the victim. The psychotherapists had such a relationship w/Poddar (patient).
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The key here is foreseeability- Def owes duty of care to all persons foreseeably endangered by his conduct w/respect to the risks
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A psychotherapist has a duty to warn a potential victim of threatened violence. B/c they were working for the state does not relieve them of liability, b/c govt. immunity covers only basic policy questions. Telling Tatiana of the threat was not a basic policy question that demanded great discretion
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Miles- the Dr. had an informational advantage of potential victims and faced very little costs to warn P—this heightens his duty to warn!
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This case contradicts the Hurley v. Edingfield case where the Ct held the Dr. was not liable for refusing to go treat the decedent even though he wasn’t busy; while here in Tarasoff the ct found Dr. liable for failing to warn. We can settle the two cases by looking at the duty being imposed.
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What is the nature of the duty the P is trying to impose?—in Hurley, P was trying to assert that the Dr. had a duty to go rescue and treat the patient; while in Tarasoff the P was asserting the Dr. had mere duty to warn.
*Notes Cases of Tarasoff:
1. Tarasoff’s CA aftermath-
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Beauchene v. Synanon Foundation Inc (CA App Ct 1979)- Ct held that a private rehab center owed no duty of care to members of the public at large when it accepted individuals referred to it by the state prison system as a condition of their parole.
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Thompson v. County of Alameda (CA 1980)- CA Supreme Ct rejected P’s claim that warnings should have been issued to the police, parents in the neighborhood, and to the youth’s mother, when a juvenile was released into his mother’s custody even after he had made a threat to take the life of a young child in the neighborhood. The Ct held that in Tarasoff the threatened targets were precise thus warnings would have a greater effect, but here warnings would have to be made to broad segment of the population and likely wouldn’t have much effect on their safety.
2. Beyond California- The influence of Tarasoff has extended to beyond CA. Duties placed on Def’s are esp. high when Def takes steps to facilitate attacks by persons w/in their care on innocent persons.
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Lundgren v. Fultz (MN 1994)- The psychiatrist contacted police to return the guns belonging to his patient that had been confiscated by police. Ct held that there is a limit to the protection given to the discretion in a professional relationship.
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Estates of Morgan v. Fairfield Family Counseling Center (OH 1997)-
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Nasser v. Parker (VA 1995)-
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Long v. Broadlawns Medical Center (IA 2002)- Ct held that Def failed to exercise reasonable care in not performing their promise to warn decedent of her husband’s release from the psychiatry medical center b/c this increased the risk of harm to her resulting in her reliance on the promised warning. P’s claim was allowed b/c P showed that the breach of duty was causally relevant. Ct held that Husband’s conduct (the killing) did not count as a superseding cause b/c his acts fell w/in the scope of the original risk.
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