exercise reasonable care

A duty to exercise reasonable care

Elements of a Tort Claim

Elements of a Tort Claim

1. Duty
2. Breach
3. Causation
4. Harm

General Rule for Duty:

IF your actions create a risk of physical harm

THEN you have a duty to exercise reasonable care

General Rule for Affirmative Duty:

IF your actions do not create a risk of physical harm

THEN you have no duty to protect or to rescue

With some exceptions: Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Harper v. Herman

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Sidenote: Don’t write like this

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

Because good writers don’t write like that.

Call me Ishmael (“Ishmael”).

It is a truth universally acknowledged, that a single man (“man”) in possession of a good fortune (“fortune”), must be in want of a wife (“wife”).

As Gregor Samsa (“Samsa”) awoke one morning on Sunday, August 9, 1986 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

And why don’t good writers write like that?

Because they treat the reader like a big, golden baby.

Farwell v. Keaton

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Randi W. v. Muroc Joint Unified School District

&

Tarasoff v. Regents of the University of California

Rowland Factors

• foreseeability of harm
• certainty of plaintiff’s injury
• connection between defendant’s conduct and plaintiff’s injury
• moral blame
• policy of preventing harm
• burden to defendant
• consequences to community
• availability of insurance