We impose negligence when there is a precaution we want people to take

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§488 of the Restatement (Second): Causal connection is severed by the intentional harms inflicted by third parties, unless those harms were or should have been foreseeable by the original tortfeasor

  • Exception. §449 of the Restatement (Second). If exposure to increased risk of intentional harms from third parties is precisely the sort of risk from which the original tortfeasor’s negligence arose, than there is no causal severance.

    1. i.e., Reasonably foreseeable criminal acts do not sever the causal liability of the first party

    2. i.e., the defendant should be liable precisely because the third party did exploit the dangerous situation created by the defendant.

    3. e.g., Landeros v. Flood, 551 P.2d 389 (Cal. 1976). Physician held liable when he negligently failed to identify/diagnose a “battered child”; could be held liable for damages resulting from child’s return to the parents, even though the harms were intentionally inflicted by the parents (see Casebook, p. 448 for other examples of the Restatement position as good law)

  • Implicit in the Restatement are limits to the causal responsibility of the original tortfeasor that are unrelated to forseeability.

  • Plaintiff’s suicide as an intervening cause.

    1. Historically, a plaintiff’s suicide was held to break the causal chain from the original tortfeasor’s negligence.

      1. Scheffer v. Railroad Co., 105 U.S. 249 (1881). P alleged that D’s negligent conduct had so hurt the decedent’s brain that he became insane and committed suicide. Supreme Court affirmed lower court judgment, denying that either insanity or the suicide could be proximately caused by D’s officers.

      2. However, later cases have held that proximate causation even in the instance of the P’s suicide created factual questions best solved by a jury

      3. Exception: Johnson v. U.S., 263 F.3d 753, (7th Cir. 2001). Posner opinion. Prisoner suffered a substantial breakdown while being held in jail for six months. Ultimately killed himself, after his petition to receive a psychiatric evaluation was negligently denied

        1. Court held that the mere possibility that the gov’t action “might” have caused the suicide was insufficient on which to affix liability. Reversed a lower court ruling for P.

  • Danger invites rescue. Generally speaking, a tortfeasor will be liable to damages sustained by a third party attempting to rescue a party injured as a result of the tortfeasor’s negligence.

    1. To achieve rescuer status, one must demonstrate:

      1. The defendant was negligent to the person rescused and such negligence caused the peril or the appearance of peril to the person rescued

      2. The peril or appearance of peril was imminent

      3. A reasonably prudent person would have concluded such peril or appearance of peril existed

      4. The rescuer acted with reasonable care in effecting the rescue

    2. Wagner v. International Ry. 133 N.E. 437 (N.Y. 1921)

      1. P was injured when he fell from a railroad trestle. P had been asked by RR to walk the 450 ft. behind the train in order to look for P’s cousin, who had been thrown from the train as a result of a “violent lurch” in the train.

        1. P claimed he had been asked by the conductor to do this

        2. P claimed the conductor followed him

      2. Cardozo, J. held that P could recover

        1. Volition of a third party rescuer does not sever the liability of the original tortfeasor

        2. Nor did the distance walked cut off liability (as opposed to say, an immediate threat of peril)

          1. Cf. Eckert v. L.I.R.R. Co., 43 N.Y. 502

  • Harm within the risk. The basic approach asserts that liability is generated only by the potential bad consequences that make D’s conduct unreasonable in the first place. I.e., D is liable only for harms “within the scope of the risk.”

    1. The Second Restatement §281 states that if a particular conduct only creates a recognizable risk for a particular class of people, if the harm implied by that risk injures a party outside the class, the actor is not liable if the harm was not foreseeable (Cardozo’s thesis in Palsgraf) (RPD: Harm within the risk)

      1. Keeton: Negligence should only obtain to the specific harm whose risk was heightened by the negligent act

      2. Larrimore v. American National Insurance 89 P.2d 340 (Okla. 1939). If the negligent aspect of D’s conduct does not harm the P, than recovery will be barred.

        1. D was lessor of a coffee shop and provided cans of rat poison for the premises. D’s lessee was the P. D had stored the cans of rat poison near a stove, not knowing that the cans were in fact combustible at high temperature (and only after prolonged evaporation). The cans were placed on a shelf with food, which was negligent per se per OK statute (which required poison to be stored in a “safe place.”

        2. Court denied recovery on the theory that the effect of the unlawful act must have some causal connection to the injury actually received. The D was under no duty of reasonable care (hence no negligence) as regards the explosive nature of the compound (lack of forseeability).

          1. Court also held that the “safe place” required by statute only referred to places where the poison would be safe from poisoning the unsuspecting

    2. Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y., 1928): “The risk reasonably to be perceived defines the duty to be obeyed.”

      1. Facts: Plaintiff was standing on a rail platform, approx. 30 feet from the other rail line. On a different line, two men attempted to catch a moving railcar.

        1. One man jumped aboard. The other, holding a package, jumped aboard but seemed about to fall. D’s employees attempted to assist the second runner onto the car. In the process, the package was dislodged and fell upon the track

        2. The package had nothing to display/warn its contents, which were fireworks. The fireworks exploded when they fell. The explosion threw down some scales at the end of the platform on which P stood

        3. P was injured as a result

      2. Cardozo, writing for the majority, held that P had no cause of action against the railroad. D was not negligent with respect to their duty of care to P since the act which caused the injury held no reasonable probability of harm as regards the defendant’s duty to plaintiff. Similarly, even if D had a duty to P that duty would be circumscribed by the standard of reasonable care.

        1. “Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all”

          1. RPD: No negligence towards the P since the harm was beyond the scope of the risk?

        2. P is attempting to assert a claim based on D’s negligence towards the property of a third party

        3. P must show that D’s act constitute a wrong towards the plaintiff as opposed to a wrongful act per se in order to affix liability

        4. Cardozo distinguishes cases in which inferences of harmful intent/strict liability (citing Talmage v. Smith) may be made by noting that such cases apply only when the act in question is “willfully dangerous”

          1. He compares it to the Nitroglycerin Case, 82 U.S. 524 (1872), which requires a foreknowledge of the risk of the particular harm for proximate causation to flow from negligence

    3. Levmore: “One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger.” (p. 458, Casebook) (Levmore loves this line)

      1. Cardozo is saying that Palsgraf should sue the bombcarrier

      2. Ideally, in Palsgraf, we want P to sue the person carrying the bomb and the RR (Levmore explicitly has a comparative negligence rule in mind), with the bomb carrier bearing the brunt of liability

      3. One wrongdoer (Polemis): a very liberal rule of recovery as regards the chain of causation, so the best way to incentivize (to mitigate risk) is to make that wrongdoer liable. Multiple wrongdoers: you find a way to assign liability to encourage people to mitigate risks (essentially creating a comparative negligence system through proximate causation).

    4. Epstein: Palsgraf distinguished from Polemis or Wagon Mound:

      1. D was not in control of the trigger at all times

      2. P did not control the risk either

      3. Dissent, instead, focused on the duties created/implied by the ex ante situation and whether or not D’s action was a proximate cause of injury. Dissent argued that D’s negligence (assuming negligence) should be a proximate cause of P’s injury regardless of a pre-existing duty of care if D’s negligence towards a third party resulted in harm to the plaintiff

        1. “Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt”

        2. Thus, the question comes down to whether or not the D’s act was a proximate cause (defined as a “substantial factor” in producing the harm actually suffered by P)

          1. From dissent’s point of view, the harm suffered by P was not remote and therefore proximately caused by D (assuming negligence)

        3. Cites the Polemis Case in order to justify a broad conception of duty

          1. Facts. D had chartered a cargo vessel from P. While it was being unloaded, a beam fell through the hold and created a spark, which exploded the ship. P sought to recover damages

            1. While the beam falling was held to be negligent, it was held that the actual accident was unforeseeable

          2. Court held that forseeability is only a test of negligence (and not causation). If an act is therefore negligent, the lack of forseeability of the particular damages cannot bar liability.

            1. “Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to be to be irrelevant.”

        4. RPD: It seems like the dissent misunderstands the point of Polemis

          1. In Polemis, it seems that the P clearly falls within the particular class of people contractually protected from the negligence of D. P was not a third party bystander

    5. The ‘Substantial factor test’ The dissent to Palsgraf would maintain that if D’s conduct was a “substantial factor” in producing harm than D’s conduct proximately caused that harm

      1. This was adopted in the Restatement (Second), using the term “legal cause” in lieu of proximate cause

        1. Exception (per §431(b)): if there is a rule of law relieving actor from liability b/c of the manner in which his negligence causes harm → no liability

        2. “Substantial” as defined from the view of a reasonable person (as opposed to a philosophical perspective)

        3. §431 adopted in Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955)

          1. P’s car had been forced off the road as an oncoming truck owned by D oil company had forced it off the road. The truck driver offered to help P’s car out and suggested that P turn the corner to warn oncoming people of the danger. A third party was turning the corner, saw his way blocked by the oil truck, skidded out of the way injuring P.

          2. Court used §431 to affix liability to D oil company. Despite the fact that the exact nature of the injury may or may not have been foreseeable, P was precisely in the class of persons for whom D had a duty of care and his negligence was a substantial factor in bringing about the harm suffered.

            1. Court noted that D’s liability would cease only when the heightened risks created by his negligence had dissipated

            2. Cf., Union Pipe Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995). A pipe fire caused by a faulty pipe was a causally remote from P’s injury when P was injured walking across the pipe after the fire had been extinguished.

      2. Jury instructions on proximate causation

        1. Mitchell v. Gonzales, 819 P.2d. (Cal. 1991) P drowned while vacationing w/D’s family. P could not swim while on a boat with D’s two children and fell overboard due to roughhousing. D was asleep on the beach at the time.

          1. Court held that jury instruction which defined legal cause as a “substantial factor” was appropriate

          2. Court also held that a “but for” test of legal causation was prejudicial to P

      3. Note: Third Restatement does not like the “substantial factor” test

  • Foresight v. directness.

    1. Wagon Mound I specifically challenges the applicability of the “direct cause” test as applied in Polemis.

      1. D had negligently discharged oil into the harbor. P had noticed the oil, and took pains to make sure that there was no risk of fire. However, a freakish series of events caused the oil in the harbor to catch fire, severely damaging P’s wharf

      2. The Australian Court overruled Polemis on the basis that it was inconsistent to make culpability a function of forseeability and yet make the tortfeasor liable for all harms so long as they directly stemmed from the negligence.

        1. Epstein notes that Wagon Mound can be distinguished, though, since there was human intervention on the part of P, which might imply some assumption of risk

        2. Also, P must tread lightly since if the harm were foreseeable to D, than perhaps it might also have been foreseeable to P as well

    2. Wagon Mound II was brought by a ship owner against the ship which had negligently discharged the oil

      1. No problem of contributory negligence here (since that was the action of the wharf owner) since the intervening negligence of third parties cannot sever causal liability. Atherton v. Devine, 602 P.2d 634 (Okla. 1979)

      2. Thus, P simply demonstrated that the harm was reasonably foreseeable to D

        1. RPD: Can then be distinguished from, Bolton v. Stone (cost-justified precautions all required for lawful acts with small chance of harm) and the T.J. Hooper (the Hand formula)

    3. Wagon Mound I and Polemis per Epstein. Holds that the cases are reconcilable

      1. Polemis was not a stranger case: the bomb (benzene in the ship) and the trigger (the beam) were in the control of the D through a consensual relationship

      2. Wagon Mound I turns on mitigation of risk. P should have been able to clean the dock and bill D before restarting work, so P should have been responsible for damages that continued to flow

        1. Wagon Mound II seems to take this approach

        2. RPD: Position of apparent safety? No. b/c that would imply that the ship owner in Wagon Mound II could only recover from the dock owner and not the oilspiller

    4. Wagon Mound and Polemis per Levmore:

      1. Polemis seems like an obvious case of the application of “thin skull” liability since there is only one tortfeasor to deter

  • Thin skull rule: “You take your victim as you find him.”

    1. Smith v. Brain Leech & Co. Ltd., 2 Q.B. 405 (1962). P was splashed with molten metal because D had negligently failed to provide an adequate guard. P had previously developed a “tendency toward cancer”. P subsequently developed cancer from the injury and died. Court acknowledged that the death was unforeseeable, but still allowed recovery (even while acknowledging Wagon Mound)

    2. Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970). P‘s car was tortiously struck by the driver of D’s car. P suffered no physical injuries. However, she developed schizophrenia subsequently. Two years earlier, P had suffered a concussion which, P argued, gave her a tendency towards schizophrenia that was catalyzed by the accident. Second Circuit held that whether or not D’s conduct was a proximate cause of the schizophrenia was a factual question for the jury

  • American response to Polemis and Wagon Mound

    1. Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1974). D negligently tied and tended its ship. It unloosed, hit another boat, they floated up and smashed into a bridge, effectively damming the river and flooding the surrounding area

      1. Court rejected the limiting factor of “forseeability” as found in Wagon Mound and held both Ds liable, applying a version of the thin skull rule instead

  • Harm within the risk

    1. Di Ponzio v. Riordan, 679 N.E.2d 616 (N.Y. 1997). D operated a gasoline station at which P and one Riordan stopped to pump gas. B/C his carburetor was not working, Riordan left the engine on when he went inside the station. Riordan’s car backed over P’s leg.

      1. Court gave summary judgment for D, citing Palsgraf: the harm was not within the risk of any duty of care that the operator of a service station had for his customers

    2. Harm within the risk is often the test when applied to negligence as a breach of statutory duty

      1. First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068 (Ill. 1999). It was a statutory nuisance to “obstruct or encroach upon public highways.” In violation of the statute, D’s driver obstructed a 4-lane truck route. Decedent was killed when she jaywalked out in front of the truck.

      2. Court held that D’s conduct was not the proximate cause of death, since the injury was not of a type “that a reasonable person would see as a likely result” of his or her conduct (emphasis in original).

    Emotional distress. Traditionally P could not recover (D was not liable) for injuries to P without actual physical harm.

          1. In accidents with physical harm, there is a varied standard from which P might recover

              1. A jury may award damages even when P has had a prior history of psychological difficulties for which the impact may have been only a precipitating or triggering cause. Steinhauser v. Hertz, 421 F.2d 1169 (2d Cir. 1970)

              2. Damages for emotional harm are generally barred unless some harm is actually manifest

                1. e.g., Plaintiff’s physical harm must either cause or be causede by the emotional distress alleged, and that physical harm must be manifested by objective symptomology and sustained by expert testimony. Payton v. Abbott Labs, 437 N.E.2d 171 (Mass. 1982)

                2. e.g., Court ruled P cannot recover for a NIED claim simply b/c she has been exposed to asbestos dust in the absence of a manifested harm. Metro-North R.R. Co. v. Buckley, 521 U.S. 424 (1997)

          2. Rule was expanded over time, somewhat, to allow P to be able to recover for emotional harms inflicted with a very slight physical contact or if plaintiff was within the “zone of harm” such that P would reasonably hear harm

            1. Dulieu v. White & Sons. P gave premature birth to child after nearly being run over by D’s horses

              1. Court held that emotional harm was recoverable injury

              2. However, limited to harms actually suffered by threatened harms to the plaintiff (as opposed to harms suffered by a third party)

          3. Emotional distress without physical impact. Dillon v. Legg, 441 P.2d 912 (Cal. 1968) P could recover for harm negligently inflicted on another given certain conditions

            1. P’s car was struck by D, killing her daughter and injuring P’s other daughter

            2. Court held that P could maintain a cause of action if

              1. Plaintiff was located near the scene of the accident as contrasted with one who was a distance away

              2. Emotional harm was the result of “sensory and contemporaneous observance of the accident” (as opposed to learning of it later)

              3. Plaintiff and victim were closely related, as contrast with an absence of any relationship or a distant relationship

            3. The extent to which a P did or did not meet this criterion was a factual question such that summary judgment was inappropriate

            4. Forseeability in emotional distress

            5. Levmore: Dillon appeared at a time of pro-feminist jurisprudence (looking at “weak women”) in order to justify his claim

          4. Emotional distress generally requires that the incident actually have been witnessed by the party claiming injury.

            1. Thing v. La Chusa 771 P.2d 814 (Cal. 1989)

              1. Court rigidily applied the “(ii) Emotional harm was the result of “sensory and contemporaneous observance of the accident” (as opposed to learning of it later) element of Dillon v. Legg

              2. Hence, it denied impact for recovery for emotional harm for a mother who had not witnessed her child’s death in a car accident.

            2. Bowen v. Lumbermens Casualty Co., 517 B,W,2d 432 (Wis. 1994). The distinction between witnessing a negligently inflicted death and learning about it second hand is an “appropriate place to draw the line between recoverable and non-recoverable claims.”

            3. RPD: Note the exception found in Molien, below

          5. Exceptions to the “direct victims” rule of Dillon

            1. Dillon itself deals only with victims of emotional distress as a result of the negligence of strangers. Consensual arrangements or indirect victims appear to create something of a problem for Dillon.

            2. However, Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980). P’s wife was negligently diagnosed with syphilis. The resulting acrimony resulted in divorce.

              1. Court held that P could recover since it was “easily predictable” that the negligence would cause harm to the P; hence he was a “foreseeable victim” of the negligence

            3. The extent to which a P did or did not meet this criterion was a factual question such that summary judgment was inappropriate. However, the CA courts have not given a clear rule that might be followed in this regard

          6. Dillon has been unevenly accepted throughout the rest of the country

            1. E.g., Hansen v. Sea Ray Boats, Inc., 830 P.2d 236 (Utah, 1992): Court refused to expand the zone of danger rule to allow for recovery by persons not actually within the zone of danger and yet reasonably and subjectively believe that they are in danger

            2. Similarly, the class of eligible plaintiffs has been narrowly construed

              1. Trombetta v. Conkling, 636 N.E.2d 653 (N.Y. 1993). Action for the negligent infliction of emotional distress allowed only for members of the immediate family (hence 11 year old niece raised by her aunt barred from recovery)

    Economic interference

    1. Levmore: If it’s a “mere” economic loss, you need to ask if the tortfeasor is otherwise deterred before you start allowing nuisance claim

    2. Generally speaking, traditional theory held that a P could not recover for economic harms absent actual injury

    3. A particular plaintiff or identifiable class of plaintiffs may recover from reasonably foreseeable economic damages (without actual physical injury) negligently inflicted by a defendant who knew or should have known were likely to result from his conduct. People Express Airlines, Inc. v. Consolidated Rail Corp. 495 A.2d 107 (N.J. 1985).

      1. Levmore: Traditional rule regarding “pure” economic losses gives way in those situations where the wrongdoers would not otherwise be deterred

        1. Alternative liability system for economic loss? E.g., P can recover pure economic damages less the extent of economic utility generated elsewhere

        2. Such a system of net economic loss makes much more sense of People’s Express.

          1. On the other hand, it doesn’t really predict the actual liability outcomes in other cases; after all, there is some net economic benefit to competing airlines caused by the disruption to P

          2. But we can reconcile this with the idea that we will use the “net” method unless we need to impose liability for the sake of primary deterrence.

      2. Facts. P, an airline operating out of Newark Airport, had its business disrupted for 12 hours following the spill of toxic chemicals by D within a mile of the airport. D’s consultants had recommended that P’s area of terminal be evacuated (although feared explosion never occurred).

      3. The lack of actual physical damage not dispositive

      4. “Identifiable class of plaintiffs” defined as

        1. types of persons or entities compromising the class,

        2. the certainty or predictability of their presence,

        3. the approximate numbers of those in the class

        4. Type of economic activity disrupted

      5. Court held that summary judgment for D was therefore inappropriate, since whether or not P met these conditions created issues of material of fact (case was remanded to the lower court)

    4. But see Casa Clara Condominium Assoc., Inc. v. Toppino, 620 So. 2d 1244 (Fla. 1993). Homeowners not allowed to recover from the cement manufacturer (products liability theory) for purely economic harms in the absence of any physical injury

      1. Recovery under negligence for product liability theory inappropriate when only the “product” itself (in this case, the condominiums made with Toppino’s concrete) are harmed

      2. Homeowners had recovery in contract, so tort was inappropriate

        1. “The character of a loss determines the appropriate remedies, and, to determine the character of a loss, one must look to the produce purchased by the plaintiff, not the produce sold by the defendant” (emphasis RPD)

    5. See also Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (Holmes, J.)

      1. P had leased a boat in order to sell shipping capacity during WWI. Part of the lease required P to put the boat into drydock for a certain amount of time at regular intervals. During one such occurrence, the D (the Dry Dock) damaged the boat’s propeller. P attempted to sue D for the loss of revenue during the time the boat was not out at sea.

      2. Court denied recovery. P did not have a beneficial interest in an asset owned by another as regards the tortious acts of third parties absent a contract

        1. The action of D did not deliberately cause P to breach his contract, so no cause of action lies

        2. “The injury to the propeller was no wrong the respondents but only to those to whom it belonged.”

    Affirmative Duties:

    Duty to Rescue

    1. Levmore: Affirmative duties to rescue: Occurs most consistently when we have a single party

      1. Consistent with the idea that if you start a rescue, you need to complete the task

      2. There is a feminist theory of rescue as well

        1. Women are (as far as social science research tells us) more pro-rescue

        2. Not inconsistent with the “Pro Rescue” nomenclature on the right to life movement

        3. And yet we have a legal system that generally does not create an affirmative duty to rescue on parties who lack the sort of “special relationship” normally required by laws

    2. An affirmative duty to rescue is generally not imposed on anyone but professionals. Based on the rules that a D is responsible for his own actions or omissions, but not a “conscripted savior” for the misfortunes of others

      1. Early cases hold that individual has no affirmative duty to warn or to rescue another from a risk not caused by that individual. Rule is particularly strong from trespassers

      2. Defendant is not liable for injuries sustained by a trespasser caused by the trespasser’s own negligence. Buch .v Amory Manufacturing Co. 44 A. 809 (N.H. 1897)

        1. P, a child who did not speak English, had trespassed onto D’s factory. P’s older brother was attempting to show him how to operate machinery. P could not understand D’s admonitions to leave. P subsequently crushed his hand

        2. Court notes that Buch is different from “cases of enticement, allurement, or invitation of infants to their injury or setting traps for them, and cases relating to the sufficiency of public ways.”

        3. RPD: The court noted that “Cases of enticement, allurement, or invitation of infants to their injury, or setting traps for them, and cases relating to the sufficiency of public ways, or to the exposure upon them of machinery attractive and dangerous to children, have no application here.” Distinguishing Buch from “attractive nuisance” cases

        4. RPD: Compare to “Spring Gun” cases

      3. Doctor has no affirmative duty to treat a dying patient. Hurley v. Eddingfield, 59 N.E. 1058 (Ind. 1901)

        1. D had been P’s family physician for some years. P had asked D to treat him for a fee as P was gravely ill. D refused to see P and P subsequently died.

      4. Yania v. Bigan, 155 A.2d 343 (Pa. 1959)

        1. P had gone onto D’s land to discuss business matters. Both were strip mine operators. On the land was some standing water (about 10 ft deep) in a cut (about 18 ft. deep). P jumped into the cut and drowned. D made no effort to save P.

        2. Court held:

          1. Mere exhortations for P to jump into the water did not deprive an adult of his independent agency in exposing himself to harm (as opposed to, say, a child)

          2. P, as a person engaged in the type of business, knew or should have known the obvious risks involved in his chosen action

          3. D owed P no affirmative duty of rescue

      5. “Once one decides that as a matter of statutory or common law duty, an individual is required under some circumstances to act at his own cost for the exclusive benefit of another, then it is very hard to set out in a principled manner the limits of social interference with individual liberty.” Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 198 (1973)

        1. Both Ames and Posner contend that “as a reasonable measure of mutual protection, anyone who can warn or rescue someone in distress at negligible cost to himself (in time, danger, or whatever) should be required to do so.”

          1. Thus, the omission of the D could be considered “negligence” through an application of the Hand formula (assuming liability – the injury to be prevented – could be affixed)

        2. In Posner’s view, liability (for the person who refuses to rescue) would induce people to act reciprocally in similar “rescue” situations

          1. On the other hand, it could induce others to stay away from such situations in order to avoid liability

          2. RPD: Note the exception of an affirmative duty of rescue for maritime law.

    3. Good Samaritan Laws.

      1. Statutory responses have generally taken two forms:

        1. Insulating the rescuer against liability from ordinary negligence

        2. Imposing an affirmative duty to rescue subject to the payment of fines

      2. In both cases, the rescuer remains liable for willful misconduct

        1. Exceptions for emergency room/hospital/clinic personnel can exist as well, however, imposing a normal standard of care for those medical personnel

    4. Duty to rescue can be imposed when the D’s actions (negligently or not) created a risk of harm which actually caused the injuries suffered by P

      1. “Misfeasance”: A lawful act performed in a wrongful manner. Liability is governed by standards of ordinary care

      2. “Nonfeasance”: The failure to act when a duty to act existed. Liability generally only occurs when some special relationship exists (or is created) b/t P and D.

        1. "Hence there arose very early a difference, still deeply rooted in the law of negligence, between 'misfeasance' and 'nonfeasance' -- that is to say, between active misconduct working positive injury to others and passive inaction or a failure to take steps to protect them from harm."

        2. Creating a risk of harm (even non-negligently) imposes a duty of rescue on an actor. Montgomery v. National Convoy & Trucking Co. 195 S.E. 247 (S.C. 1937)

          1. D’s truck had stalled without fault at the bottom of an icy hill, blocking the road completely. D had placed signal flares behind the truck, but not in a position that would allow a following car time to stop without hitting the truck. P’s car subsequently came around the hill, struck the truck and injured P.

          2. Court held that P could recover since “it was incumbent on [D] to take such precautions as would reasonably be calculated to prevent injury.”

          3. Epstein views Montgomery as a “tort like” exception

    5. There is an affirmative duty to rescue those you have harmed

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