Duty of Care: Privity of Contract

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Questions and Answers

Under what circumstance may a defendant be liable for tort due to misfeasance?

If the possibility of harm to third parties could have been foreseen (correct)

When the defendant's promise was not made in writing

Only if a breach of contract occurs

When the contract is performed without defects

What is the primary principle regarding nonfeasance in tort law?

It creates liability regardless of any contracts made

It mandates a duty to act in all contractual relationships

It only applies to affirmative acts and does not create tort liability (correct)

It applies when there is an intention to breach a contract

Which of the following scenarios may allow third parties to file tort claims against a professional?

The professional's actions intentionally misled the third party (correct)

The professional performed their duties without any mistakes

The third party suffered no damage from the professional's actions

The professional's contract clearly stated no third-party claims

In tort law, what is a primary exception that can impose a duty to act?

If the actor has created a risk through their actions Signup and view all the answers

Why might public utilities be liable for tort actions?

They have a duty to serve the public and can be liable for failure to do so Signup and view all the answers

What does modern tort law state regarding the breach of a contract promise affecting third parties?

Liability is generally applicable when physical harm occurs to a third party Signup and view all the answers

Which of the following does NOT establish tort liability due to the breach of a contract?

The contract was fulfilled as per terms Signup and view all the answers

What establishes a duty of care toward another individual in tort law?

Affirmative action that could foreseeably harm others Signup and view all the answers

Which of the following situations creates a duty to protect from harm?

A parent for their child Signup and view all the answers

What is the primary purpose of Good Samaritan Statutes?

To limit civil damages for emergency assistance providers Signup and view all the answers

In which scenario is it typically possible to recover for wrongful death?

Death due to another’s wrongful act Signup and view all the answers

Which type of damages is typically not recoverable under wrongful death actions?

The decedent's pain and suffering prior to death Signup and view all the answers

What has been established by the majority regarding pure economic loss?

It is generally denied unless related to property damage Signup and view all the answers

What kind of action does the term 'wrongful conception' refer to?

Claims related to unsuccessful sterilization procedures Signup and view all the answers

What type of damages may be claimed in a survival action?

Actual damages incurred before death Signup and view all the answers

Which of the following statements about liability for third-party actions is false?

Bailors are never liable for bailees' actions Signup and view all the answers

Study Notes

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.

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Description

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.