Duty of Care
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Winterbottom v. Wright
Winterbottom, a coach driver, sued Wright, a coach manufacturer, for injuries sustained when the coach broke down.
H: A person may not sue another on a non-public contract when he/she is not privy to the contract.
Three Areas in Which Duty of Care Is Central in Establishing Liability
1. Act of a 3rd party or natural event has caused physical harm to Plaintiff that defendant has failed to take affirmative steps to prevent or ameliorate
2. The negligent act causes non-physical harm, i.e. emotional distress or pure economic loss
3. The negligent act causes losses in birth or conception where the traditional categorizations of personhood are incapable of bestowing a cause of action.
(area 3 demonstrates that technological advances and social change may give rise to new interests that may be protected by negligence)
Clagett v. Dacy
F: Clagett, highest bidders in a foreclosure sale, sued Dacy, attorney for creditors, for failing to follow proper procedure for the sale.
Q/P: May an attorney be held liable to a person who is not intended to benefit by his performance, and with whom the attorney does not have a contractual relationship?
H: No. An attorney may not be liable for damage caused by his negligence to a person not intended to benefit by his performance.
The plaintiff was not a third party beneficiary (contract law)
Hegel v. Langsam
The Hegels, parents of a minor child who was a university student, sued Langsam, a university official, for failing to prevent the student's association with criminals, to become a drug user, and for failing to return the student to Hegel's custody.
Q/P: Does a university have the duty to control the private lives of students?
H: A university does not have the duty to control the private lives of its students.
J.S. and M.S. v. R.T.H.
Wife of pedophile was sued for failure to protect the neighbor children from sexual abuse by her husband.
Two sisters spent a lot of time with their 65 year old neighbor, riding and caring for his horses. Neighbor began sexually abusing the children and continued for over a year.
Q/P: Does a spouse who suspects or should suspect his or her spouse of actual or prospective sexual abuse against a particular person or persons have a duty to care to prevent such abuse and, if so, does breach of that duty constitute a proximate cause of the harm that results from sexual abuse?
H:Yes. The wife of a pedophile has a duty to warn others of her husband's propensities
Tarasoff v. Regents of University of California
Therapist has a duty to warn potential victim disclosed by patient.
State of Louisiana ex rel. Guste v. M/V Testbank
State of LA sought recovery from M/V Testbank for pure pecuniary loss suffered when M/V's negligence caused fishing waters to be closed.
Q/P: May a plaintiff recover for pure economic loss if the loss resulted from physical damage to property in which the plaintiff had no interest?
H: No. A plaintiff may not recover for pure economic loss if the loss resulted from physical damage to property in which the plaintiff had no interest.
Latin phrase meaning "in fear"
An unreasonable interference with a right common to the general public. It is behavior which unreasonably interferes with he health, safety, comfort, peace, or convenience of the general community.
Pure Economic Loss
Arises when a person suffers loss not consequent upon injury to his person or property. These cases fall into two categories:
1. Negligent misrepresentation or misstatement causing economic loss; and
2. Negligent acts resulting in economic loss
Damages tacked onto some other tort
Posner's Analysis of Duty of Landlords to Protect Tenants from Criminal Activity
1. Landlord must be aware of the criminal risk to the tenant; and
2. The risk of injury (via criminal activity) is higher than the risk times the injury to the cost of mitigation.
Posner is the minority
in re Primus
(Think about solicitation)
African american woman attorney who worked with poor black women in S.C. after becoming aware that doctors were requiring women to be sterilized and have hysterectomies to qualify for medicaid for themselves and their families.
Edna Smith was the attorney and was charged with solicitation for sending letters to possible clients. Edna defended that b/c she and the organization she worked with (ACLU) had a 1st Amendment right of expression and one of the means of expression was litigation. She also defended that she was a public interest lawyer.
Supreme Court Holding: Public interest lawyers and orgs have a right of expression in the form of litigation.
Ohraliik v. Ohio State Bar Assn.
Solicited a client in a torts case and didn't complete the case. Person complained to the Bar. Ohralik claimed that he had a first amendment right from in re Primus. Was decided the same day as Edna Primus. Ohralik lost.
Holding: A lawyer purely for profit has no first amendment right to freedom to use litigation as a means of expression.
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