Duty concerns whether a person has a legal obligation to act, and a corresponding legal liability for failing to act, in a particular circumstance. The existence of a duty is a question of law for the court. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,
RISK IMPORTS RELATION
The seminal case on duty is (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 59 A.L.R. 1253]) While Mrs. Palsgraf stood on a platform of defendant's railroad, a man carrying a package of fireworks wrapped in a newspaper attempted to board a moving train. A railroad employee assisted him, and the package was dislodged, fell and exploded. The shock threw down platform scales many feet away, and these struck Mrs. Palsgraf. Palsgraf established that in analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care and whether the plaintiff was within the zone of foreseeable harm. (Palsgraf v. Long Is. R.R. Co., supra.) "The damaged plaintiff must be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him." (Johnson v. Jamaica Hosp., , 62 NY2d 523, 527.) "The risk reasonably to be perceived defines the duty to be obeyed." (Palsgraf v. Long Is. R.R. Co., supra.). In other words, foreseeability of risk defines the scope of duty.
THE SCOPE OF ANY DUTY OF CARE VARIES WITH THE FORESEEABILITY OF THE POSSIBLE HARM.
The kind and number of hazards encompassed within a particular duty depend on the nature of the duty. Where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. Conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards (Rest.2d Torts § 281). When the person is harmed by an occurrence resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor's conduct, the actor is not liable. For example: A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C, the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol wounding C. A is subject to liability to C, but not to D. (Rest.2d Torts § 281 comment f)
Under the common law, as a general rule, one person owed no duty to control the conduct of another Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971) § 56, p. 341) The courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (see Rest.2d Torts, supra, §§ 315-320). As explained in section 315 of the Restatement Second of Torts, "a duty of care may arise from either (a) a special relation ... between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation ... between the actor and the other which gives to the other a right of protection." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435)
DUTY OF ONE IN IMMINENT PERIL
A person who, without negligence on his or her part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to him or herself or to others, is not expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments. His or her duty is to exercise the care that an ordinarily prudent person would exercise in the same or similar circumstances. If at that moment he or she does what appears to him or her to be the best thing to do, and if his or her choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he or she does all the law requires of him or her. This is true even though in the light of after-events, it should appear that a different course would have been better and safer.
RESPONSIBILITY OF ONE CAUSING THE PERILOUS SITUATION
When a situation of peril such as that described above is caused by someone's negligence, and the person in peril, acting under the impulse of fear, makes an instinctive and reasonable effort to escape and, in so doing, injures himself or herself or a third person, the negligence that caused the peril is deemed to be a cause of the injury. This is true even though it might have appeared, or after the event it may appear, from the viewpoint of another person, that the effort to escape was unwise or that the person in danger would not have been injured no one would have been injured if that effort had not been made or had been made differently.
VOLUNTARY UNDERTAKING--"GOOD SAMARITAN" RULE
A person who is under no duty to care for or render service to another but who voluntarily assumes such a duty, is liable to the other for injury caused by a failure to exercise ordinary or reasonable care in the performance of that assumed duty.
THE RESCUE DOCTRINE--LIABILITY TO RESCUER
In general, there is no duty to come to the aid or rescue of a stranger unless, the rescuer negligently created the situation which put the stranger in peril and necessitated the rescue. The essential elements of the rescue doctrine are:
1. The defendant engaged in negligent conduct;
2. Such conduct threatened real and imminent serious harm to the person or property of another;
3. The plaintiff attempted to rescue the endangered person or property;
4. In attempting such rescue, the plaintiff suffered injury, damage, loss or harm; and
5. The defendant's negligence was a cause of the rescue attempt and of the injuries or damage sustained by plaintiff in the course of such rescue attempt.
OTHER SITUATIONS GIVING RISE TO DUTY
Restatement Second of Torts Section 388 outlines the requirements for imposing liability on one who supplies a chattel which is known to be dangerous for its intended use. No duty can exist under section 388 unless defendant supplies a chattel to defendant to use.
A travel agent has a duty to disclose reasonably obtainable material information to the traveler unless that information is so clearly obvious and apparent to the traveler that, as a matter of law, the travel agent would
not be negligent in failing to disclose it. (McCollum v. Friendly Hills Travel Ctr. (1985) 172 Cal. App.3d 83, 945.)
DUTY OF CARE - OWNERS AND OCCUPIERS OF LAND
The common law determined what duty of care an owner of land owed to those coming upon the land by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor's consent, and an invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [156 A.L.R. 1221].) Although the invitor owed the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461), the general rule was that a trespasser and licensee or social guest were obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owed them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier's liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account.
Most courts have now rejected the rigid common law classifications and instead approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. The California Supreme Court has held that the proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable person in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative. (Rowland v. Christian (1968) 69 Cal.2d 108, 119)
MODERN RULE - DUTY OF OWNER, OCCUPANT OR LESSOR OF PREMISES
The owner, occupant or lessor of premises is under a duty to exercise ordinary care in the use, maintenance or management of such premises in order to avoid exposing persons or other property to an unreasonable risk of harm. Such duty exists whether the risk of harm is caused by the natural condition of such premises or by an artificial condition created on such premises. Such duty exists even when the unreasonable risk of harm is caused by the criminal conduct of a third person which, in the exercise of reasonable care, is or should be foreseeable or where the owner, occupant or lessor of the premises maintains the property in such a way as to increase the risk of criminal activity. Such duty is owed to persons on the premises and to persons off the premises. A failure to fulfill this duty is negligence.
CONCERNING OWNER'S, OCCUPANT'S OR LESSOR'S KNOWLEDGE OF DEFECTIVE CONDITION
The owner, occupant or lessor of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner, occupant lessor had no knowledge, unless the condition existed for such a length of time that if the owner occupant lessor had exercised reasonable care in inspecting the premises the owner, occupant or lessor would have discovered the condition in time to remedy it or to give warning before the injury occurred.
Nor may the owner occupant lessor be found to be negligent if, having exercised ordinary care, he or she discovered such a condition before the time of the injury, but not long enough before to provide him or her the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.
DUTY OF LANDLORD TO PROTECT TENANT FROM CRIMINAL ACTS OF THIRD PERSONS
Criminal conduct of a third person is ordinarily an intervening cause not reasonably foreseeable by a landlord. However, where a landlord has notice of previous conduct of a criminal nature by third persons on or near the landlord's premises, a landlord of property owes a duty to a tenant to take reasonable action to protect a tenant from reasonably foreseeable conduct of a criminal nature by third persons in common areas of the landlord's building or to warn the tenant of particular dangers of which the landlord has notice. The landlord's failure to perform such duty is negligence. However, if the landlord's action or inaction was what might be reasonably expected of a person of ordinary prudence under similar circumstances who desired to comply with the law, the landlord is not negligent.
DUTY OF CARE OF PROPRIETOR OF BUSINESS
The proprietor of a business establishment owes a duty of care to customers when they come upon the business premises at the proprietor's express or implied invitation. This duty of care requires the proprietor to exercise reasonable care to discover whether accidental, negligent or intentionally harmful acts of third persons are occurring or are likely to occur on the business premises. If a proprietor knows, or should know that such acts are occurring or are likely to occur, the proprietor has the further duty to either give the customer a warning adequate to enable the visitor to avoid the harm, or otherwise to protect the visitor against such harm.
A warning will not be adequate when it is apparent that because of a lack of time or the character of the conduct to be expected, it will not be effective to give protection. A failure by the proprietor to perform any such duty of care is negligence.
The proprietor does not have a duty to control the misconduct of third persons which the proprietor has no reason to anticipate, or no reasonable opportunity or means to prevent, or which occurs on property neither owned, possessed nor controlled by the proprietor.
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