XI. Duty: Action vs. Inaction; Special Relationships | Scott Soloway | March 09, 2018

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XI. Duty: Action vs. Inaction; Special Relationships

Original Creator: Jonathan Zittrain Current Version: Scott Soloway Show/Hide

We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”

Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it. Certain types of negligently inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Now that you think about, consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Cases in which harm is mediated through another person are sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. should a bartender not face an inquiry for serving drinks to someone who ends up causing a car accident.

We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in the Jersey Shore while pleas for help and assistance coalesce right next to you.

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    1. 1.1 Show/Hide More Moch Co. v. Rensselaer Water Co.--"The Failure to Supply Water During a Fire"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      In questions of duty, should courts draw a distinction between inaction that has the consequence of harm, and positive action that creates harm?
    2. 1.2 Show/Hide More Union Pacific Railway v. Cappier--"The Railroad that Ran Over a Man and Let Him Bleed to Death"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should non-negligent owners and operators of an instrumentality have a duty to assist individuals who are harmed by the instrumentality?
    1. 2.1 Show/Hide More Harper v. Herman--"The Boat Owner Who Failed to Warn"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Does being a social host create additional duties to guests? Should an individual’s superior knowledge of a dangerous condition require him or her to disclose that danger?
    2. 2.2 Show/Hide More Farwell v. Keaton--"The Fatal Pickup Attempt"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should we expect partners in a joint activity—in this case, chasing after girls—to have a duty to protect and aid each other? If someone provides aid, should courts impose a duty on the aiding party to provide a certain standard of care for the injured party?
    3. 2.3 Show/Hide More Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should courts recognize a broader rule for creating a duty, capable of encompassing wrongful communications?
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March 09, 2018

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Scott Soloway

business lawyer practicing law

Boston

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