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Rescue--Day 3

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

Gabriel
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Rescue--Day 3

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  1. Rescue--Day 3

  2. 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

  3. 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.

  4. Protection from Crime • Madden v. C & K Barbecue Carryout • Holding? • Concurrence? • Dissent? • Better view?

  5. 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.

  6. 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

  7. 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]

  8. 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.

  9. 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.

  10. 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

  11. 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

  12. 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

  13. Government Agencies • Florence v. Goldberg (Supp) • Facts? • Defendant’s theory on appeal? • Held? • What barriers must P suing government overcome? • Immunity • public duty doctrine

  14. 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?

  15. 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)

  16. Next: Is Time to recognize a general duty to rescue?

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