Mod 6

Question 1

What is the key first step in negligence duty analysis from this webinar?

Answer 1

Classify the conduct as misfeasance (affirmative act) or nonfeasance (failure to act), because nonfeasance triggers the default no-duty rule unless an affirmative-duty exception applies.

Question 2

Define misfeasance in negligence.

Answer 2

Misfeasance is affirmative conduct; when D acts, D generally owes a duty of reasonable care in performing that activity.

Question 3

Define nonfeasance in negligence.

Answer 3

Nonfeasance is an omission/failure to act; the general rule is no duty to act unless a special relationship or special situation justifies an affirmative duty.

Question 4

What is the general rule for duty in nonfeasance cases?

Answer 4

No duty to act absent a special relationship or special situation creating an affirmative duty.

Question 5

In Tarasoff-type facts, what relationship created the duty?

Answer 5

The therapist–patient special relationship.

Question 6

Why is Tarasoff “unusual” as a special relationship case?

Answer 6

The key relationship was not between plaintiff and defendant; it was between therapist and patient, yet it created duties for the benefit of third persons.

Question 7

What duty did the court impose on the therapist in the webinar’s framing?

Answer 7

An affirmative duty to exercise due care to protect third persons; warning the victim may be the reasonable way to fulfill that duty when the intended victim is known.

Question 8

What common mistake about Tarasoff did Bracci warn about?

Answer 8

Misreading it as “therapist always has a duty to warn an intended victim.” Tarasoff is better stated as a duty to protect third persons, with warning as one possible reasonable step.

Question 9

In the paragraph about difficulty forecasting violence, what negligence element was the court talking about?

Answer 9

Breach (reasonableness), not duty. Duty had already been found.

Question 10

Why does finding duty not automatically mean liability?

Answer 10

Because plaintiff must still prove breach—that defendant acted unreasonably under the circumstances (and then causation/damages).

Question 11

In Tarasoff, what standard informs whether the therapist breached?

Answer 11

The professional reasonableness standard: reasonable knowledge and care ordinarily possessed/exercised by that specialty under similar circumstances.

Question 12

Why did the campus police have no duty to warn in the webinar discussion?

Answer 12

Because there was no special relationship/special situation justifying an affirmative duty between the police and either the threatening person or the potential victim in the way required to impose duty.

Question 13

How do lawyers compare to therapists regarding client threats (majority view described)?

Answer 13

No required duty for lawyers to warn/protect third parties; confidentiality/privilege is highly prized, and many jurisdictions permit but do not require disclosure.

Question 14

What policy reason was emphasized for not imposing a duty on lawyers?

Answer 14

The sanctity of attorney-client confidentiality/privilege—clients must be able to speak freely to counsel.

Question 15

In the webinar, what did Bracci say about whether attorneys can be compelled to testify about privileged communications?

Answer 15

A court cannot compel testimony that breaks privilege; a subpoena requires appearance, not necessarily testimony, and privilege supports refusal to testify.

Question 16

What case area did Bracci use to discuss business/land occupier duty to protect patrons from third-party violence?

Answer 16

The Posecai (“Pozakai”) v. Wal-Mart line of analysis: duty of land occupier/business to protect patrons from third-party criminal acts.

Question 17

Which approach did that court adopt to decide duty for third-party crime?

Answer 17

The balancing approach.

Question 18

State the balancing approach rule in one sentence.

Answer 18

The greater the foreseeability and gravity of harm, the greater the duty of care imposed, balanced against the burden of precautions.

Question 19

Under the balancing approach, what level of foreseeability is typically required for guards/patrols?

Answer 19

A high degree of foreseeability is typically required for costly measures like guards/patrols.

Question 20

Under the balancing approach, what level of foreseeability can justify lesser measures (lighting/cameras)?

Answer 20

A lower degree of foreseeability may justify lesser security measures such as lighting, cameras, trimming shrubbery, fencing.

Question 21

How did the court apply foreseeability in the Sam’s Club facts described?

Answer 21

Prior crimes were few and occurred after closure, unlike the current event (open/daylight), so foreseeability was insufficient to impose duty for patrols/guards.

Question 22

In the birthday party hypo, why does plaintiff likely lose against the social host (majority rule)?

Answer 22

It’s nonfeasance (failure to stop guest), and most jurisdictions refuse to impose an affirmative duty on social hosts to prevent intoxicated adult guests from driving.

Question 23

Give one policy reason courts use to deny social host liability.

Answer 23

Imposing liability shifts responsibility from the drunk driver, interferes with social customs, and creates a difficult-to-apply standard.

Question 24

What is a dram shop statute?

Answer 24

A statute imposing (or defining) liability/duty for commercial suppliers of alcohol for harms caused by intoxicated patrons.

Question 25

In the webinar, what was said about dram shop statutes (majority framing)?

Answer 25

The majority of jurisdictions do not have dram shop statutes; thus, in the majority view as presented, no duty is imposed on commercial suppliers absent such a statute.

Question 26

If the intended victim is unknown (danger to the general public), does duty disappear?

Answer 26

No—duty can still exist due to the special relationship; the key question becomes what reasonable protective steps satisfy the duty.

Question 27

In “victim unknown” duty-to-protect essays, what is the main grading focus?

Answer 27

Breach—arguing what a reasonable professional would have done under the circumstances.

Question 28

What is the “core exam warning” Bracci repeated about negligence essays?

Answer 28

Students find duty and then assume liability; but breach must still be proven—duty does not equal liability.

Question 29

What is the clean essay sentence for the social host hypo (duty element)?

Answer 29

“Because this is nonfeasance, the issue is whether a special relationship justifies an affirmative duty, and the majority rule is that the social host–guest relationship is insufficient to impose a duty to prevent an intoxicated adult guest from driving.”

Question 30

What should you do when you see a negligence essay where duty is obvious?

Answer 30

Immediately shift to breach—the “biggest discussionable issue”—and argue both sides on reasonableness.

Question 32

What is the general rule for nonfeasance (inaction) in negligence?

Answer 32

Generally, there is no duty to act, so failure to act is usually not negligence unless an exception creates a duty.

Question 33

What two “nonfeasance” duty categories does this lesson focus on?

Answer 33

Duty to control and duty to protect (which includes the duty to warn).

Question 34

For the duty to control, what relationship matters?

Answer 34

The relationship between the defendant and the person doing the harm.

Question 35

What elements typically create a duty to control?

Answer 35

A special relationship + knowledge of the need to control + ability to control.

Question 36

Why is “ability to control” central to special relationships for duty to control?

Answer 36

Because the duty is based on the defendant’s capacity to exert control over the dangerous actor.

Question 37

Name common special relationships supporting a duty to control.

Answer 37

Parent–child, employer–employee, teacher–student, and custodial relationships (custody of dangerous persons).

Question 38

Give a classic duty-to-control example from the transcript.

Answer 38

A parent who knows their child is likely to harm another child has a duty to control/supervise to prevent harm.

Question 39

Why is social host liability for serving alcohol described as “debatable”?

Answer 39

Courts and statutes vary: some recognize a duty, many do not; many states have statutes limiting or barring social host liability.

Question 40

For the duty to protect, what relationship matters?

Answer 40

The relationship between the defendant and the person who will be harmed (usually the plaintiff).

Question 41

How does duty to protect differ from duty to control in relationship focus?

Answer 41

Control: defendant ↔ harmful actor. Protect: defendant ↔ potential victim (plaintiff).

Question 42

What does the duty to protect include?

Answer 42

The duty to warn as part of protecting against harm.

Question 43

What key concept limits the duty to protect once it exists?

Answer 43

Foreseeability—the duty is generally limited to foreseeable risks of harm.

Question 44

What was the core holding described from Marquay v. Eno?

Answer 44

School employees with supervisory responsibility can have a duty to protect students; liability depends on foreseeable risk and whether they knew or should have known of abuse.

Question 45

Why did Marquay v. Eno find a duty to protect in the school context?

Answer 45

Students are required to attend school and the school must provide a safe educational environment, putting employees in a supervisory role similar to parents.

Question 46

Besides special relationships, how else can a duty to protect arise?

Answer 46

Through an undertaking to protect + the plaintiff’s reliance on that undertaking to their detriment.

Question 47

What is an “undertaking + reliance” example from the transcript?

Answer 47

Dan promises to watch Peter’s child after being warned; leaves kids unsupervised; child harmed → duty to protect likely arises.

Question 48

How can duty to protect be created by both relationship and undertaking?

Answer 48

Sometimes the special relationship plus the defendant’s assumed responsibility (undertaking) together establish the duty.

Question 49

What case illustrates landlord-tenant duty to protect linked to reliance on security?

Answer 49

Kline v. 1500 Massachusetts Avenue (landlord had duty to protect tenant where tenant relied on security).

Question 50

Is business-customer relationship alone enough to create a duty to protect customers from third-party crime?

Answer 50

No. Courts require more, especially a high degree of foreseeability of danger.

Question 51

What are the three approaches courts use for foreseeability in business/customer crime cases?

Answer 51

Prior similar incidents, totality of the circumstances, and balancing test.

Question 52

What does the balancing test weigh in duty-to-protect cases?

Answer 52

Foreseeability and gravity of harm versus the burden on the defendant to provide protection.

Question 53

Under the balancing test, what happens when the requested precaution is very burdensome (e.g., security guards)?

Answer 53

Courts require a higher degree of foreseeability and likelihood of serious harm to justify imposing the duty.

Question 54

Under the balancing test, what happens when the requested precaution is low burden (e.g., cameras)?

Answer 54

A lower level of foreseeability may suffice compared to high-burden measures.

Question 55

What happened in Posecai v. Wal-Mart (as described)?

Answer 55

Plaintiff robbed in parking lot; court used balancing and held Wal-Mart had no duty to provide security guards due to high burden and limited similar incidents at the store.

Question 56

What concept does Tarasoff blend?

Answer 56

The duty to control and duty to warn/protect, arising from the therapist–patient relationship and a credible threat to an identifiable victim.

Question 57

In Tarasoff, did the therapist need a relationship with the victim to have a duty to warn?

Answer 57

No; the duty arose from the therapist’s relationship with the patient and the known risk to the third party.

Question 58

What is the public duty doctrine?

Answer 58

A doctrine that generally provides no common-law duty to protect for public officials (e.g., police/firefighters) toward individual members of the public.

Question 59

What is the typical consequence of the public duty doctrine in negligence claims?

Answer 59

If officials fail to protect someone, they typically are not liable for negligence because there was no duty.

Question 60

Name the main exceptions to the public duty doctrine discussed.

Answer 60

Duty may arise if officials undertake action and induce reliance, enlist the plaintiff’s help, or increase the risk of harm.

Question 61

Give the transcript’s example of an exception creating a duty under the public duty doctrine.

Answer 61

Police enlist Patrick in neighborhood watch, assure protection, instruct him to shine a light, increasing risk; he’s shot → duty likely created.

Question 62

One-sentence rule test: duty to control.

Answer 62

Duty to control arises when a special relationship with the harmful actor plus knowledge and ability to control makes the risk manageable and foreseeable.

Question 63

One-sentence rule test: duty to protect.

Answer 63

Duty to protect (and warn) arises when a special relationship (or undertaking + reliance) exists with the potential victim, limited to foreseeable risks.

Question 64

What is nonfeasance?

Answer 64

Failing to Act

Question 65

What is an exceptionthat creates a duty to control?

Answer 65

A special relationship

Question 66

Do social hosts have a duty to control their guests?

Answer 66

NO

Question 67

What requirments must exist for their to be a duty to control?

Answer 67

Knowledge of the need to control and the ability to control

Question 68

The special relationship for the duty to control is between:

Answer 68

The defendant and the person who needs to be controlled

Question 69

The special relationship for the duty to protect is between:

Answer 69

The defendant and the person who needs to be controlled, or who will be harmed

Question 70

What is the balancing test?

Answer 70

Under the balancing test, the higher the burden of security is on the defendant, the higher the foreseeability and gravity of harm requirementsare as well.