Failure to Act
As a general rule, there is never a duty to rescue but there are many exceptions
• Is there a special relationship? (doctor/patient, parent, spouse, assumption of duty,
innkeeper/guest, Invitor/Invitee, Common Carrier/Passenger,
Employer/Employee)
• Is there a foreseeable risk of harm to a particular person or imminent probability
of harm?
There is only a duty to warn of 3rd party criminal acts where there is an imminent
probability of injury.
Where a party is injured by an instrument that is in the control of another party,
this creates a legal duty to render assistance. L.S. Ayres case
• Does not matter if the injury is caused by the person’s negligence
• Did they render assistance in a reasonable time
• Did failure to act cause aggravation of the injury
Failure to Warn
Consider: 1) Nature of the risk of harm, 2) Foreseeability and severity of the harm 3)
Relationship of the parties, 4) Public policy/social interest in the solution, 5) Was there an
opportunity to prevent the harm
Particularized Foreseeability– Would a particular person suffer a particular harm to
your knowledge? Do you have a special reason to know of this risk of harm from past
experiences or actual knowledge?
There is a duty to warn when a person has a special reason to know of a particular
harm to a person is a serious threat. Must use reasonable efforts to alert the person
or authorities.
Emotional Distress
Old Rule– Victim must show a physical impact to receive compensation. What are
parasitic damages?
New Rule- Plaintiff can recover if they prove that the physical harm was a natural/normal
result of the fright which was proximately caused by the defendants actions.
There must be a definite and objective physical injury (Loss of weight, nervousness,
sickness) that is caused by the defendant’s actions. Medical testimony could be critical.
Must show definite damages to prevent overflow of false claims.
Bi-stander Liability
Emotional trauma caused from viewing a loved one injured in some way.
Restrict recovery to those who suffer an impact beyond what is anticipated, the
greatest emotional distress. (Thing)
• Was the plaintiff viewing the scene or arrive shortly after, before the
victim was altered in any way? Did they sensorily and contemporaneously
experience it?
• Did plaintiff suffer serious distress that was more than expected?
• Were the plaintiff and the victim closely related?
A different Approach – Emotional distress for almost being struck (California)
• Was plaintiff in the zone of danger and experience the event (More senses)
• Was there an objective and definite physical injury
• Was this foreseeable?
Damages/Compensation
Damage awards must be fair and reasonable. Cannot be excessive or prejudice.
Medical experts or economic experts are sometimes needed to determine award amounts.
• Permanence of the plaintiff’s condition
• Future deterioration
• Past and future medical expenses
• Restrictions that the injuries cause
