4. Was the Duty of Care Owed to the Plaintiff? The Forseeable Plaintiff Test
- Rule: in order to give rise to a duty of care, P must belong to a class of persons considered to be foreseeably at risk
Palsgraf v Long Island Ry Co. (1928) - man jumping onto train - pulled in by one guard, pushed by other, package containing fireworks falls and explodes casueing scales at other end of platform to fall on Ps head -
held: possiblity of accident must be clear to prudent eye, and must be within radius of harm to be owed a duty - injuries to P held not be be forseebale so no neg’ce
dissent: act of P itself created forseablity of accident, therefore should be held liable in neg’ce
Haley v London Electricity Board [1965] - blind man trips on workmans obstacle
held: reasonably forseeable that blind person would be on sidewalk, therefore duty of care towards that class owed, city negligent in breach
VII SPECIAL CATAGORIES OF NEGLIGENCE: DUTIES OF AFFIRMATIVE ACTION
- distinguish:
misfeasance: negligence in a legally permitted act (where the Ps condition is worsened when the D contributes to or creates a situation fo peril for the P) - “active misconduct” (duty of care imposed)
nonfeasance: failure to confer a benifit or protect form harm “passive inaction” (no duty, no imposed liabilty)
in general, unless there is a DUTY on a person to take positive action, ther will be no liability even if harm to another is forseeable or preventable
will recognise an affirmative duty in sit’n where the P is in a position of vulnerability vis a vis the Ds ability to control or protect them, or balance expertise of D with the reliance upon it by the P
1. The Duty to Rescue
- in general no duty to rescue unless there is a relationship of control or supervision (parent/child; teacher/pupil; employer/employee; carrier/passenger; prisons/inmates; hospitals/patients), a relationship of economic benifit, reliance relationship, statutory duties, or one is the creator of a dangerous situation.
Rule: if you have not created a situation of danger, either through negligence or intentionally, you are not obliged to help the person in danger, especailly if it will comprimise your safety
Osterlind v Hill- D found not negligent in renting a canoe to P who was visibly intoxicated, nor was he negligent in failing to respond to Ps calls for hel when that canoe tipped (canoes inherently tippy by nature)
Rule: there is a duty to resuce if if D has innocently or negligently created the OPS perilous situation, physically worsened the Ps position, denied the P other opportunities for aid, or induced the P to rely upon him for help …if you start soemthing you must finish it.
Horsely v MacLaren “The Ogopogo”- D invited (no K’l rel’n) people onto his boat, one fell overboard. In attmepting to rescue th D did not follow the correct procedure, he backed up instead of circling around and coming head on twds the body, another guest then dove in to save the vicitm, and died instantaneously of shock. - was there a legal duty to rescue?
test: what would reasonable boat operator do in the circumdstances, attributing to such perosn teh reasonable skill and experience required of the master of a cabin cruiser who is resp. for safety and rescue of passengers?
held: captain did owe duty to rescue, but no negligence here, b/c death was instantaneous not result of improperly executed rescue., also owed a duty to second victim b/c he induced him to jump in.—effect of error in emerg. sit’n?
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