Contract and Duty Flash Cards

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Title: Contract and Duty
Description: Torts
Number of Cards: 21
Save Count: 0
Author: bet15211
Created: 2011-12-08
Tags: 5 section
Private No

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    • Question
    • Answer
    • Side 3
    • 3 Step Process to contract and duty
    • 1) Is there an enforceable contract (must be consideration on both sides)
      2) If it is enforaceable, do they take it to tort law
      a) contract-econmic
      b) tort-physical
      i) always look to see what system it belong tonight
      3) The must find some duty that exists separate and apart from the contact itself
      a) Restatement-undertaking services with conduct that increases risks
      b) special relationship
      c) reliance
    • Unenforceable promises
    • (1) One who undertakes promise (for no consideration) and does not do it – no liability
      (2) One who does take on promise but does it wrong – could be liable
      (3) If there is reliance – could be liability
      (a) Has to get to a point of reliance (ex. Promise to cut down tree, starts to do it but don’t finish it, the other person is in no different situation so there is no recovery)
    • Enforceable promises
    • 1) For at tort to arise there must be
      2) Reliance-must
      3) Special relationship
      4) If there is a contract with the city, then they do not have a duty to every memember of the city
    • How to determine if a tort has arisen in an enforceable promise?
    • (1) For a tort to arise there must be
      (a) Breach separate and distinct from the contract; and
      (b) Active negligence or misfeasance
      (i) Spengler –gave wrong address to ambulance which delayed arrival 16 minutes
      (a) Held – duty to dispatch EMS arose from contact, no tort available
    • What must reliance do in an enforceable promise?
    • (a) Take the conduct forward (Cardozo, if conduct has gone forward language); and
      (b) Special reliance (must be in limited class, which relies upon continued performance)
    • When are there special relationship?
    • (a) Is there an enforceable promise
      (b) If based on special relationship, is it (1) not from contract (2) did they adopt restatement
      (c) Ex. Landlord – tenant (landlord liable for physical harm to lessee if caused by condition of disrepair
    • A city is liable when?
    • (a) Must be special relationship
      (b) Direct contact
      (c) P must have reliance on promise
    • Traditional notion of promises to a third persons
    • Confined the right to recover to those who enter into the contract
      (a) Winterbottom
      (i) D under contract to keep coaches in good repair. P died when he was thrown
      (ii) Held – not liable – d only owed obligation to the employer
    • Elements to promises to a third person
    • 1) traditional notion
      2) Affirmative action or conduct by the defendant
      3) A transfer of the existing duty
    • What is affirmative action/conduct by a defendant in regards to a promise to a third person?
    • (a) “if conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward”
    • Transfer of existing duty must:
    • (a) Actual transfer of duty
      (i) Ceiling fan case, if a special relationship exists between the party of the contract and the plaintiff, and then another party comes into the contract, the duty owed to p is transferred
      (b) Affirmative action to fulfill duty
      (c) H.R. Moch Co.
      (i) A defendant’s failure to act is not actionable under tort law unless the defendant has a duty to act as to the plaintiff
    • Duty to protect from 3rd persons
    • a) A private person has no duty to act affirmatively to protect another from criminal attack by a third person, private a special relationship
      (1) School does not have duty if child has left their custody
    • Exceptions to the duty to protect from 3rd persons
    • 1) Relationship with plaintiff
      2) Relationship with dangerous persons
    • Components to exceptions to protecting from a 3rd person when there is a relationship with the plaintiff
    • 1) designated special relationship
      2) Foreseeability
      3) Creating/enhancing risk
      4) Restatements
      5) Policy
      6) A duty to control children
    • Designated special relationship with plaintiff under 2nd restatement
    • 1) common carrier-passenger
      2) Innkeeper-guest
      3) Business inviter-invitee
      4) Voluntary custodian-protected
    • Designated special relationship with plaintiff under 3rd restatement
    • (a) Employer – employee
      (b) School – student
      (c) Landlord – tenant
    • Foreseeability under the duty to protect from 3rd persons
    • (i) Prior specific harm – requires knowledge of specific, imminent harm to impose duty
      (ii) Prior similar incidents – look to similar incidents that have occurred in the past
      (iii) Totality of circumstances – look at prior incidents, but also consider whether landowner knew or should have known without incidents
      (iv) Breach (balancing test) – in determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the burden imposed on the burden to protect against the harm
    • Courts creating special relationship because of policy reasons
    • (i) Marquay – “a child while in school is deprive of the protection of his parents or guardian, therefore, the actor who takes custody of a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived”
      (ii) Colleges generally have no duty to protect or guide new students with respect to the pleasures and dangers of sex, alcohol, drugs, or even over study
      (iii) Fuchess- “"a landlord's gratuitous provision of security measures into a duty to maintain those measures and subjecting the landlord to liability for all harm occasioned by failure to maintain that security would tend to discourage landlords from instituting security measures for fear of being held liable for the actions of criminal"
    • A duty to control children

      Parents are liable when:
    • Parents are only liable for failing to control some specific dangerous habit for a child of which the parent knows or should know in the exercise of reasonable care
      a) P must show more than a parent's general notice of a child's dangerous propensity
      b) P must show that the parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm
    • Components to relationship with dangerous persons
    • 1) Liability may be imposed even if no relationship with the plaintiff
      (2) If defendant has power to control the harm and does not, he is liable
      (3) When a professional does determine, or under applicable professional standards, reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger
      (4) Tavern / Bar duty
    • Tavern/Bar Duty
    • (a) One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person
      (i) Cannot be liable if
      (a) Not for on premises
      (b) Not noticeably intoxicated
      (c) If not selling
      (b) Negligent entrustment, or some states find liability for providing alcohol by a host