Rescue--Day 3

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. Parents = definitely, now that IMMUNITY is disappearing recent cases: mom�s duty to protect kid from �stepdad� homeowners insurance may not cover (MO case) OTHERS?? Carpoolers? How unlike bus driver?? More control? Less ability to bear cost? Where would it end? TRY �CAUSED PERIL� re driver�s duty or highway assistance statutes Bar-hopping? Unwritten promise/code? Farwell!! Mountain climbers? No established niche; but mutual dependence/reas expectation. Designated driver? P = Not so completely, exclusively depend on him/her BUT TRY UNDERTAKING & RELIANCE.Parents = definitely, now that IMMUNITY is disappearing recent cases: mom�s duty to protect kid from �stepdad� homeowners insurance may not cover (MO case) OTHERS?? Carpoolers? How unlike bus driver?? More control? Less ability to bear cost? Where would it end? TRY �CAUSED PERIL� re driver�s duty or highway assistance statutes Bar-hopping? Unwritten promise/code? Farwell!! Mountain climbers? No established niche; but mutual dependence/reas expectation. Designated driver? P = Not so completely, exclusively depend on him/her BUT TRY UNDERTAKING & RELIANCE.

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 PARENT/CHILD: recent case=parents of pregnant teenage girl sue parents of BOY!. Not aware if got to trial. Unlikely unless his mom knew of their sexual relationship and tolerated the conduct at her home. CUSTODY: negligence leads to escape from private sanitarium; hosp. Negligently tells patient he is no longer contagious and can go home. GOVT AGENCY? Same rules apply re escape of criminally insane, but need to get past immunity. And for NORMAL RELEASE, usually an immunity statute for state and MDSPARENT/CHILD: recent case=parents of pregnant teenage girl sue parents of BOY!. Not aware if got to trial. Unlikely unless his mom knew of their sexual relationship and tolerated the conduct at her home. CUSTODY: negligence leads to escape from private sanitarium; hosp. Negligently tells patient he is no longer contagious and can go home. GOVT AGENCY? Same rules apply re escape of criminally insane, but need to get past immunity. And for NORMAL RELEASE, usually an immunity statute for state and MDS

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] DUTY: reasonable care to protect if knew or shk of serious risk BASIS: special relationship with Poddar (therapist-patient) clearly = a special relationship of dependence (as we discussed last class); so a duty to protect Poddar (offer meds, advise well, etc) not so clear that there is a special relationship of control however, it is true that D has access to very revealing information and the expertise to evaluate it better than Poddar�s bartenderDUTY: reasonable care to protect if knew or shk of serious risk BASIS: special relationship with Poddar (therapist-patient) clearly = a special relationship of dependence (as we discussed last class); so a duty to protect Poddar (offer meds, advise well, etc) not so clear that there is a special relationship of control however, it is true that D has access to very revealing information and the expertise to evaluate it better than Poddar�s bartender

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. Poddar�s lawyer? Special relationship of dependence, but no control No expertise re geniuneness of threat probably no duty to warn; but can�t assist in crime Poddar�s bartender? No dependence, control or expertise. No duty. Police who were told of Poddar�s threats? Temporary control, but no authority to detain. Could warn but no psychiatric expertise. No duty. Poddar�s lawyer? Special relationship of dependence, but no control No expertise re geniuneness of threat probably no duty to warn; but can�t assist in crime Poddar�s bartender? No dependence, control or expertise. No duty. Police who were told of Poddar�s threats? Temporary control, but no authority to detain. Could warn but no psychiatric expertise. No duty.

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 RATIONALE FOR PUBLIC DUTY DOCTRINE: adequacy of resources is limited; deployment of resources would invade province of legislayure and executive about how to use available money (police, roads, etc.)RATIONALE FOR PUBLIC DUTY DOCTRINE: adequacy of resources is limited; deployment of resources would invade province of legislayure and executive about how to use available money (police, roads, etc.)

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?