Special Duties and Limitations:

Does a duty exist?

Usually, yes. But sometimes:
• D does not owe a duty to P at all: No duty to rescue.
• D may owe a lesser (or greater) duty to the P based on their relationship: Government agents; landowners;
family members; those engaged in undertakings.
• D may not owe a duty to the P to protect against a particular kind of harm: Unforeseeable harms; pure
emotional distress; pure economic loss.
Duty to Rescue:
Generally, no duty to rescue.
But there are exceptions:
• Creating the risk (Rest. §321, 322; Yania)
• Three breaches of duty were alleged:
• Bigan enticed Yania to jump
• Bigan failed to warn Yania of the danger
• Bigan failed to rescue Yania
• Yania vs. The Restatement
• Rest. 2d §321: If an actor “does an act” and subsequently realizes that his act “has created an
unreasonable risk of causing physical harm to another,” he must exercise due care to prevent
this harm from taking effect.
• Rest. 2d §322: If an actor knows that “his conduct, whether tortious or innocent” has caused P
bodily harm such that P is now “helpless and in danger of further harm,” he must exercise due
care to prevent the further harm.
• Increasing P’s peril; undertaking to assist; creating reliance (O’Neill; Lawter)
• Having a special relationship (Tarasoff, landowners, social hosts)
Undertakings to Assist:
• If you undertake a rescue, you must do so with due care
• If you undertake a rescue negligently, you may be liable
• If you undertake a rescue and abandon it when the P is relying on you at the expense of others, you may be
liable
• Relevant cases:
• Hurley; O’Neill: When does a duty based on undertakings kick in (at least in the medical
contexts)?
• Lawter; Frank: What duty of care do we expect of those who have undertaken to assist?
Duty to Rescue:
• If you undertake a rescue, you must do so with due care
• If you undertake a rescue negligently, you may be liable
• If you undertake a rescue and abandon it when the P is relying on you at the expense of others, you may be
liable
• Note: Most states have statutory Good Samaritan doctrines that immunize rescuers from tort liability when a
rescuee suffer injury, provided that the rescuer has not acted recklessly or with gross negligence.

Public Duty Doctrine:

• Sovereign immunity protects the state from tort liability.
• Today, sovereign immunity has been mostly abolished by statute: state and federal Tort Claims Acts.
Duties Based on Relationships:
A duty to act may arise if the D has a special [fiduciary, control] relationship with the P (or with the dangerous
instrumentality that causes P harm).
• Parent/Child
• Ship Captain/Crew
• Common Carrier/Passenger
• Doctor/Patient
• Innkeeper/Guest
 • Employer/employee
Social Hosts:
Common law rule: No liability. See Charles v. Seigfreid (IL 1995).
But note: A growing minority of states reject the common law rule, and will impose liability on social hosts. See Kelly v.
Gwinell.
Duties of Landowners:
The extent of D’s duty (the standard of care) may vary depending on whether the P is a:
• Trespasser (and type of trespasser)
• Regular
• Known
• Foreseeable/constant
• Child
• Flagrant
• Licensee: Social guest (enters the property with the owner’s express or implied consent).
• Invitee: Business guest (enters the property for purposes connected to the owner’s business); or public invitee.
The extent of D’s duty (the standard of care) may also vary depending on whether the injury arises from a:
• Dangerous Activity
• Dangerous Condition
– Open and obvious, or hidden?
– Artificial, or natural?
Duties to Trespassers:
1. Generally, the duty owed to trespassers was only to avoid willful/wanton misconduct.
– See Haskins v. Grybko re: unknown trespassers; Rest. 2d §333
2. But in cases of known/constant trespassers or child trespassers, this duty was heightened to some degree
(varies by jurisdiction)
– See Rest. 2d §334 (dangerous activities) and §337 (dangerous artificial conditions) re: known trespassers
– See Keffe v. Milwaukee RR; Rest. 2d §339 (dangerous artificial conditions)
3. Historically, landowners owed a higher duty to invitees (inspect and warn/correct) than to licensees (just warn)
4. But today, many states merge the invitee/licensee category and impose on those landowners a single duty of
reasonable care. 
– This may extend to trespassers as well: Rest. 3d §51 imposes a general duty of reasonable care to all
entrants on the land regardless of their status (even trespassers)
Duties to Licensees and Invitees:
Licensees (social guests):
• Ordinary care in activities
• Warn of known hidden dangerous conditions
Invitees (business guests, public):
• Ordinary care in activities
• Inspect for hidden dangerous conditions, and warn or correct
Rowland v. Christian Approach:
• Abandons distinctions between trespasser, licensee, and invitee.
– “A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of
compensation under the law because he has come upon the land of another without permission or with
permission but without a business purpose.”
• Instead, use the “ordinary care” standard.
– Look to foreseeability of harm, burden to D, cost of insurance, etc.
Illinois Approach:
1984 Illinois Premises Liability Act:
• For invitees and licensees, a duty to exercise reasonable care under the circumstances relating to acts or
conditions.
• For trespassers, a duty to refrain from willful and wanton misconduct.
Restatement 3rd Approach:
Rest. 3rd § 51: General Duty of Land Possessors:
A land possessor owes a duty of reasonable care to entrants on the land with regard to:
(a) conduct that creates risks;
(b) artificial conditions that pose risks;
(c) natural conditions that pose risks; and
(d) other risks, when other affirmative duties (special relationships) apply
Rest. 3d § 52: Duty of Land Possessors to Flagrant Trespassers:
With respect to flagrant trespassers, a land possessor owes a duty not to act in an intentional, willful, or wanton
manner to cause physical harm.
• But, must exercise reasonable care for flagrant trespassers who reasonably appear to be imperiled and (1)
helpless, or (2) unable to protect themselves.
- Rhodes v. Illinois RR
Duties to Rescue:
Entrant (regardless of status) onto land may suffer injury and need rescue as a result of:
• D’s dangerous activity on the property
• Dangerous condition on the property (natural or artificial, obvious or hidden)
 Independent injury (i.e., heart attack
 D puts P in peril/creates the risk of harm:
o Rest. 2d §321, 322; Rest. 3d §29, 37
 D holds land open to the public :
o Rest. 2d § 314A; Rest. 3d §40
 P is helpless
o See Rest. 3d §52: Duty to assist “flagrant trespassers” who are imperiled and helpless

Causation: Cause in Fact:

A. Causation in Fact
– “But-for” causation
– Consider the Counterfactual: Would D’s untaken precaution have more likely than not
prevented P’s injury?
– To test this:
– Identify P’s injury
– Identify D’s wrongful conduct
– Correct for D’s wrongful conduct
– Determine if P’s injury would still have occurred
o N.Y. Central RR v. Grimstad – Would providing a life buoy have prevented P’s drowning?
o Gardner v. National Bulk Carriers – Would turning the boat around to look for P have
prevented his drowning?
 In Gardner, the court gave judgment as a matter of law to P, finding that the ship’s
failure to search for P substantially contributed to P’s death.
o Stacy v. Knickerbocker Ice Co. – Would any of the three identified precautions have
prevented P’s horses from falling through the ice?

Exceptions: Used when it’s impossible to know whether D in fact caused P’s injury.
• Loss of chance
• Loss of chance: … P had an underlying “background” risk of injury (medical malpractice cases
only).
• Herskovits v. Group Health
• Lost chance approach (Herskovits): How much of the risk of death was
attributable to D’s negligence?
• “Lost Chance” in Illinois
 • By narrowly defining the injury, Illinois escapes criticism that it’s
applying a new doctrine of causation:
• When you identify the injury in lost chance cases as “a loss of
chance of survival,” you can apply traditional but-for causation
principles:
• Did D’s negligence more likely than not cause P to lose a chance
of survival? Yes, obviously.
• Compare: If you identify the injury as death (or paralysis, or
some negative health outcome), traditional but-for causation
won’t work.
• Did D’s negligence more likely than not cause P’s death? No, we
can’t prove this.
•
• Alternative liability
• There are multiple negligent D’s, only one of whom is the but-for cause, but we don’t know
which one.
• (Summers v. Tice).
• Market share liability
• There are multiple negligent Ds (fungible product cases only), only one of whom is the but-for
cause, but we don’t know which one.
• P must identify a “substantial share” of Ds, and establish breach by each
• Burden then shifts to each D to disprove causation
• Liability apportioned by way of market share
• The “substantial factor” test
• … there are multiple negligent Ds, and i) both are but-for causes, or ii) neither are but-for
causes.
• neither can be proven as but-for causes (duplicative / redundant): either D would have
been sufficient (Kingston)
OR
• both are but-for causes (additive): each D is a necessary, but not sufficient, cause (two
polluters);
• All negligent Ds who are substantial factors in the P’s injury are deemed to be causes in
fact.
• Like alternative liability: Burden is on each D to show that he was not a cause.
• Unlike alternative liability: P need not join all the Ds.
Causation in Informed Consent Cases:
Note: In informed consent cases, then, there are two pieces to factual causation:
1. Decision causation: If the reasonable person had been informed, would he have still consented to the
procedure?
2. Injury causation: Was the injury actually caused by the unconsented-to risk?

B. Proximate Causation
1. Duty & Breach
2. Causation in Fact & Proximate Causation
3. Injury & Damages
Duty, breach, causation in fact, injury, and damages are the “ingredients.”
Proximate cause is the “recipe” that tells you how they all must fit together.
Proximate Causation/Scope of Liability:
Restatement 3d §29 calls proximate causation Scope of Liability:
• “An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.”
No bright-line rule for proximate causation!
Commenters use the following phrases:
• “Foreseeable consequences”
 • “Natural and probable consequences”
• The result of a “continuing sequence of events”

Foreseeable Consequences:
The Wagon Mound Cases:
- Ds will not be held liable for all direct consequences (compare Polemis), but only those that are
reasonably foreseeable.
- Framing this in terms of the Hand Formula: Wagon Mound holds that the set of risks that cause an
act to be labeled negligent (PL in the B<PL) is the same set that defines the defendant’s liability as a
matter of proximate cause.
Kinsman Transit:
- No liability where an injury springs “from a hazard different than that which was improperly risked”
- D will be liable only if his breach causes damage that is: (1) direct, and (2) “of the same general sort,
from the same forces, and to the same class of persons” that was risked.
- What does it mean for the harm to be “of the same general sort, from the same forces, and to the same class
of persons” that was risked, as required by Kinsman?
We might consider:
• Type of injury (and to whom)
• Manner of harm (process, chain of events)
• Magnitude of harm (how large are the damages)
• Temporal/spatial proximity
• Policy/practical implications
United Novelty v. Daniels:
- Rat soaked in gasoline leads to explosion. Liability for asking employee to use gasoline in a room
with a lit heater?
- “Negligence would be predicated of the juxtaposition of the gasolene and the open flame.
Under similar circumstances, the particular detonating agency, whether, as here, an animate
version of the classic lighted squib, or as in Johnson v. Kosmos Portland Cement Co., a bolt of
lightning, was incidental except as illustrating the range of foreseeability.”
Proximate Causation: Intervening Acts:
- Where the carelessness of one actor (D1) causes harm to the victim only because of the subsequent harmful acts of
another (D2), should D1 be liable for the subsequent harm?
- When will D1 be liable for P’s injury even though there was an intervening act by D2?
1. The reason D’s conduct was careless is because it creates a risk of direct harm, and that type of harm actually
occurs (even if through indirect means)
1. Driver D1 negligently knocks over a lamppost. Driver D2 negligently crashes into the fallen lamppost,
causing injury to passenger P.
2. P is let off at the wrong train stop, and suffers burns when she stays at a hotel there (Central Georgia
Railway)
2. The reason D1’s conduct was careless is because it creates a risk of direct harm, which then creates or
increases the foreseeable risk of subsequent injury by D2.
1. P breaks his leg as a result of D1’s negligence. Physician D2 negligently operates on the broken leg
(see Pridham, Rest. §457).
2. P breaks his leg as a result of D1’s negligence. While walking normally on crutches, P is further injured
when he trips on something (see Rest. §460).
3. See also Brauer, Watson
3. The reason D1’s conduct was careless is only because it creates or increases the foreseeable risk of subsequent
wrongdoing by D2.
1. Landlord D1 fails to repair broken locks; burglar D2 breaks in and attacks P.
2. D1 entrusts his car to a bad driver D2; D2 negligently crashes the car into P.
Palsgraf: Proximate Cause, Scope of Liability, and the Limitation of Duty:
- Cardozo: Perhaps the issue is not one of proximate causation, but of duty.
• Does D have a duty to this particular P?
• Does D have a duty to prevent this particular kind of harm?
Cardozo’s View:
• Duty: Determines scope of liability; duty is limited to a defined class of persons within a zone of foreseeable risk.
Andrews’ View:
• Duty: Duty to avoid acts that unreasonably threaten the safety of others; this duty extends to everyone.
• Proximate cause: Determines scope of liability, based on “convenience, public policy, a rough sense of justice.”
Zokhrabov v. Park (IL App. 2011):
- Dead Teen Sued for Losing Control of Flying Body Parts
• While trying to catch a Metra train, Joho (son of Park) crosses the tracks and is hit by an Amtrak train.
• His body is thrown 100 feet, hitting Zokhrabov and knocking her to the ground, breaking her wrist and injuring
her shoulder.
• Appeals court reverses, allows claim to proceed.
• Rule: “[W]hile the foreseeability of injury to the particular plaintiff is properly considered in a duty
analysis, the foreseeability of the particular injury or damages are more appropriately considered in
determining the factual issue of proximate causation.”
• Appeals court reverses, allows claim to proceed.
• Separates out two issues:
• Duty: Was P a foreseeable P? Yes.
• There were people around, the train was powerful, the crosswalk was marked - it was
foreseeable that D’s negligence would cause injury to another passenger.
• Proximate Cause: Was it a foreseeable injury? TBD.
• “We, therefore, find that the trial judge erred in holding that the defendant owed the
plaintiff no duty of care... We express no opinion regarding the additional elements of
her negligence action, including breach, proximate causation, and damages, which are
issues usually decided by a jury.”
Limitation of Duty: Purely Economic Losses:
- Common Law: Defendants never owe a duty to Plaintiffs to protect them against purely economic losses
(unaccompanied by physical harm or property damage)
Proposed Rest. 3d has some exceptions for professionals (attorneys, accountants, etc.).
Generally, no liability where:
• Imposing liability would result in too many Ps
• Ps can protect themselves by contract
- Robins Dry Dock v. Flint
- D Robins Dry Dock, hired by boat’s owner to perform repairs, breaks propeller. Boat is out of commission for 2 weeks,
resulting in economic loss to Ps who chartered the boat.
Why no liability?
1. No privity of contract
2. Pure economic loss
- Comparing 532 Madison Ave. and People Express
• No liability in Madison Ave. – no duty to protect an entire neighborhood from economic loss.
• Possible liability in People Express - D owes a duty of care to avoid the risk of economic damages to an
identifiable class of plaintiffs.
Limitation of Duty: Negligent Infliction of Emotional Distress:
1. Direct victim recovery: D acts negligently towards P, causing P emotional distress.
– Near-misses, zone of danger
– Special duties and touchy subjects
2.“Bystander” recovery: P’s emotional distress arises from D’s negligent act towards someone close to P.
Near-Misses: Lawson and Quill:
Is there a distinction between the two cases?
 • Lawson: “The duty of care imposed on airplane operators does not extend to the emotional distress suffered by
physically untouched spectators of plane crashes, even spectators who, for a brief moment, reasonably fear for
their own safety. A moment's reflection should reveal that there are too many situations in modern life when
one can reasonably be scared for one's own safety. Permitting a lawsuit for just that fright would clog the
courts and make transportation and commerce impossible.”
In order for P to recover for NIED, P’s fear of cancer must be “reasonable,” judged by:
• If cancer is “probable,” “more likely than not.”
Other courts, in fear of HIV cases, require “actual exposure” (though these may be treated as simple negligence if
there’s a needle-stick or similar physical contact).
Bystander Recovery:
Generally, a bystander P can recover for purely emotional harm only if he can show:
• serious victim injury;
• close relationship between bystander and victim; and
• physical and sensory proximity/contemporaneousness (see Marzolf and Gain)
What about mistakes?
• Barnhill v. Davis: Mistake about the severity of injury
• Barnes v. Geiger: Mistake about identity
Defenses to Negligence:
Contributory, Comparative Negligence:
P’s conduct fell below the standard of care, and P’s breach is both the cause in fact and the proximate cause of the
accident resulting in the injury.
• Breach: P knew or should have known of the foreseeable risk, and acted unreasonably in light of the risk by
failing to exercise due care.
• Causation: Is it more likely than not that the incident could have been avoided if P had used due care?
• Pure Comparative Negligence: P can recover something no matter how negligent he was.
• Modified Comparative Negligence: P recovers only if he was as negligent or less negligent than D.
• 50% rule: “P’s fault does not exceed D’s;” “P’s fault was not greater than D’s.”
• 49% rule: “P’s fault was not as great as D’s;” “P’s fault was less than D’s.”
Manning v. Brown
Rule: A P cannot recover for injuries directly resulting from P’s serious violation of the law.
• Here, the duty that D breached arose out of the illegal act.
Fritts v. McKinne
In Fritts, the court allowed P’s case against the negligent doctor to go to trial, even though P’s negligence caused his
injury.
Rule: A physician may not avoid liability for negligent treatment simply because the patient caused his own injuries.
Pridham v. Cash & Carry
D1 (negligent clerk) D2 (ill ambulance driver)
Where D1’s negligence caused an injury requiring medical assistance, and a secondary injury occurred during rescue, D1
will also be liable for the second injury.
Fritts v. McKinne
D1 (negligent P) D2 (negligent MD)
Where D1’s negligence caused an injury requiring medical assistance, and a secondary injury occurred during rescue as a
result of D2’s negligence, D1 will not be treated as “liable” for the second injury.

Damages:
• Nominal – Symbolic
 
• Compensatory – To make the plaintiff whole
• Pecuniary losses: diminished market value, lost earnings, medical expenses, other economic losses
• Non-pecuniary losses: pain and suffering, mental distress, disfigurement, loss of enjoyment of activities,
distress of reduced life expectancy
 
• Punitive – To punish the defendant
Lost Earnings:
• Landers v. Ghosh: Wife receives $400K in damages after death of husband, an unemployed 22-yo trained as a
carpenter.
• $400K covers both loss of support and loss of consortium
• Pescatore v. Pan Am: Wife receives $14 million in damages for death of husband, a 33-yo oil executive at BP.
• $9 million for lost earnings; $5 million for loss of society
Doctrine of Avoidable Consequences / Mitigation of Damages:
A plaintiff may not recover for damages that she could have avoided or minimized through the exercise of reasonable
care.
• Exception under Restatement §918: We won’t reduce P’s damages for failure to mitigate where the D commits
an intentional tort or acts in reckless disregard (more than mere negligence), unless P acts intentionally or
heedlessly.
• Comparative Negligence: How should fault be apportioned between two tortfeasors (P and D)? There is
a single indivisible harm to P, but it was not entirely D’s fault because P helped cause it as well.
• Mitigation of Damages: D causes an identifiable harm to P; then, through P’s failure to mitigate, the
damages/harm are increased.
• Usually applies where P’s negligence contributed to the severity of injury in a way that can be
easily apportioned (there are two distinct harms).
•