Duty of Care: Privity of Contract

Duty of Care: Privity of Contract

• Limited Duties:
  • Nonfeasance: Failure to perform a promised act does not create tort liability, consistent with common law principles. Only contractual remedies apply. Exceptions exist.
  • Exceptions to Nonfeasance:
    • Public utilities and carriers have a duty to the public and are liable for failure to perform.
    • A defendant who makes a contract without intending to perform commits misrepresentation and is liable for deceit.
  • Misfeasance: Defective performance of a contract can be a basis for both contract and tort liability. A defendant could be liable to third parties if foreseeable harm was possible.
  • Breach of Contract and Third Parties: Modern rule: a defendant may be liable to third parties if they should foresee possible harm. This is more likely with physical injury and misfeasance.
  • Third Party Beneficiary Tort Claims:
    • Typically, no tort duty extends beyond the professional-client relationship. An attorney's malpractice only affects the client, not others.

Duty of Care: Failure to Act

• General Rule: No duty to affirmatively act to aid others. Exceptions exist.
• Exceptions to "No Duty" Rule:
  • Creating a Risk: If an affirmative act creates a risk, care is required.
  • Volunteer: A volunteer has a duty to act as a reasonable person.
  • Specific Relationships: Employers, common carriers, and those with custodial control (e.g., invitors) have a duty to protect.
  • Knowledge of Danger: A duty arises if someone knows or reasonably should know of a potential danger and fails to act.
• Generally No Duty to Protect: No duty to prevent others from harming someone. Exceptions to this include bailors and bailees, parents and children, and employers and employees (as in employer control cases). Showing control of third parties' actions is difficult.
• Affirmative Action and Increased Risk: If a person takes action to help and it increases the risk, or if the other party relies on that help and is harmed as a result, there's a duty.
• Good Samaritan Statutes: Can limit actions against doctors/nurses providing emergency care. Statutory provisions vary by jurisdiction.

Duty of Care: Pure Economic Loss

• Majority Rule: Tort compensation for pure economic loss without accompanying physical injury or property damage is denied.
• Rationale: This approach aims to limit liability for potentially widespread/unforeseen economic damages arising from negligence.

Duty of Care: Emotional Distress, Unborn Children, Wrongful Death

• Emotional Distress: Not covered in detail.
• Unborn Children (Wrongful Death):
  • Wrongful death of an unborn child is generally allowed.
• Unborn Children (Wrongful Life):
  • Recovery is generally not allowed.
• Unborn Children (Wrongful Birth):
  • No clear majority rule exists.
• Unborn Children (Wrongful Conception):
  • Generally allowed.
• Wrongful Death:
  • Damages are often determined by statute, typically covering:
    • Loss of support
    • Loss of services
    • Loss of society
    • Funeral expenses
  • Survival Actions:
    • If death is caused by another's wrongful action, damages are available for conscious physical and emotional pain before death along with lost wages and actual damages.

This quiz delves into the nuances of duty of care and privity of contract, contrasting nonfeasance and misfeasance. It highlights the liabilities involved in contractual obligations, particularly concerning third parties and exceptions to standard rules. Understand the implications of defective performance and how they extend beyond simple contractual duties.