Thursday, February 25, 2010
2 - Torts - Negligence - Duty (Part 1)
Negligence – Duty (Part One)
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
Remember, there are five basic elements for negligence: (1) Duty (with Standard of Care), (2) Breach of Duty, (3) Causation and (4) Damages. One may also want to include the lack of defenses as an element so that it will not be over looked on an exam.
Let’s start with the element of duty.
Duty is quite appropriately defined as a legally-recognized relationship between the parties. That, however, is not sufficient. Duty is divided between misfeasance and nonfeasance. Nonfeasance is failing to act – or take some sort of action – while misfeasance is acting inappropriately or badly.
Let’s start with misfeasance. The rule for misfeasance is that one acting affirmatively owes a duty of care to all foreseeable plaintiffs. The Cardozo view is that foreseeable plaintiffs are those persons within the zone of danger. The Andrews view is that one owes a duty to the public at large. These views stemmed from the Paslgraf v. Long Island Railroad Company case. The Cardozo view is the majority rule, but it would be good to mention them both on an exam.
Nonfeasance is a different animal. The general rule for nonfeasance is that there is no duty to act, except for situations of special relationship, an undertaking to act, where the defendant caused the peril, where defendant caused plaintiff to rely on a gratuitous promise or where there is a contractual duty to act. There are a number of special circumstances of which you should be aware.
We’ll talk about them next time.
Professor Doug Holden
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