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Rescue--Day 3 Recap No general duty to aid others BUT undertaking & reliance causing the peril special relationship with the victim TODAY protection against crime special relationship with perpetrator government agency duties New Special Relationship ? 1. Mental hospital and ward

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Rescue--Day 3

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  • No general duty to aid others
  • BUT
    • undertaking & reliance
    • causing the peril
    • special relationship with the victim
    • protection against crime
    • special relationship with perpetrator
    • government agency duties
new special relationship
New Special Relationship?
  • 1. Mental hospital and ward
  • 2. Adult carpoolers
  • 3. Parent and child
  • 4. Bus driver and passengers
  • 5. Kindergarten teacher & students
  • 6. Bar-hopping buddies
  • 7. Mountain climbers
  • 8. JCPenny & customer on escalator
  • 9. Designated driver who bolts.
protection from crime
Protection from Crime
  • Madden v. C & K Barbecue Carryout
  • Holding?
  • Concurrence?
  • Dissent?
  • Better view?
protection against crime
Protection Against Crime
  • Early law: no such duty
    • recall early law of proximate cause (criminals=superceding, intervening cause)
  • Today,
    • most courts recognize duty if foreseeable
    • Missouri requires past crimes of similar gravity.
special relationship with perpetrator
Special Relationshipwith Perpetrator
  • Parent and child
  • Master and servant
  • Possessor of land and licensee
  • Person in charge of someone with dangerous propensities
  • any common prerequisites?
  • Ability to control and knowledge of need
tarasoff v regents 279
Tarasoff v. Regents (279)
  • Facts?
  • Any Duty to Tatiana? [Yes]
  • What precisely is the duty owed? [Reasonable care to protect]
  • What is the basis for the duty to aid? [special relationship]
  • With whom does therapist have a “special relationship”--Tatiana or Poddar?[Poddar]
does he have power to control poddar
Does he have power to control Poddar?
  • Clearly, a special relationship of dependence exists between Poddar and D (doctor-patient). So D has a duty to take affirmative acts to help Poddar (like recommend the right medicines). But does D also have a duty to help Tatiana?
  • Court may inadvertently (and erroneously) have assumed that a “special relationship” of dependence also suffices to impose a duty to help Tatiana.
  • D doesn’t seem to have any “control” over Poddar (as contrasted, say to the keeper of an asylum).
  • But D did have the expertise to evaluate the danger to Tatiana and the power to protect her. That is enough to impose a duty under this line of cases.
tarasoff 2
Tarasoff - 2
  • What action will satisfy the duty?
    • Advise Poddar not to hurt anyone?
    • Tell police? (he did)
    • Tell Tatiana?
    • [answer: jury question; D might win]
  • What if therapist doesn’t know the identity of the anticipated victim (secret or serial killer)?
    • No one to warn. (threat to general public)
    • Only a few courts impose duty to seek commitment.
a wise decision
A Wise Decision?
  • Yes
    • merely obliged to use reasonable prof’l judgment.
    • confidentiality outweighed by welfare of others
    • Will make society more safe
      • like laws requiring reporting of child abuse
a wise decision11
A Wise Decision?
  • No
    • perpetrator is culprit, not therapist
    • too hard to predict
      • will stigmatize patients unfairly
      • lead to risk-avoiding overcommitment
    • will actually harm public safety
      • patients won’t open up to therapist
prob 18 289
Prob. 18 (289)
  • Insurance physical is NOT a special relationship of dependence.
    • NO common law duty to warn applicant.
  • BUT many states have statutes requiring disclosure of reason insurance was denied
government agencies
Government Agencies
  • Florence v. Goldberg (Supp)
  • Facts?
  • Defendant’s theory on appeal?
  • Held?
  • What barriers must P suing government overcome?
    • Immunity
    • public duty doctrine
florence 2
  • Why wasn’t P barred by “public duty doctrine” ?
    • “special relationship”
      • undertaking and reliance
      • NOTE: more targeted than reliance on fire or police departments
  • Why not worry about interfering with resource allocation decisions now?
government agency recap
Government Agency Recap
  • Public duty doctrine
    • no liability based on general duty owed to public.
    • Respond to fires, crimes, supply water,…
  • Special relationship needed:
    • undertaking & reliance
    • special relationship of dependence (jailer’s duty to seek first aid for ill prisoner)
    • special relationship of control (let prisoner escape)