Torts Duty Question

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dsb83
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Torts Duty Question

Postby dsb83 » Mon Dec 10, 2012 8:33 pm

I ran across a duty question, I wasn't sure how to handle in a hypo. It went something like this:

A guy brings his car into a mechanic for basic maintenance, oil change and such. The mechanic notices a severely worn pin related to the braking system, which has a good chance of failing. He doesn't say anything to the customer. The pin of course breaks and carnage ensues.

What creates the affirmative duty for the mechanic to warn the customer of the pin? It looks like an instance of non-feasance but I tried to couch it in terms of misfeasance in performing his job as a mechanic. In either case, I didn't know how to concisely establish that the mechanic had a duty to say something. Any thoughts?

swimmer11
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Re: Torts Duty Question

Postby swimmer11 » Mon Dec 10, 2012 8:40 pm

Duty to act with the same level of skill and knowledge as another mechanic of good standing under the circumstances.

I think.

JG7773
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Re: Torts Duty Question

Postby JG7773 » Mon Dec 10, 2012 8:43 pm

I would say that as a mechanic, he has a duty to warn his customers of potential issues that he finds. In this case, if he discovers the pin, but fails to provide the customer with the opportunity to decide if he wants to have it fixed or not, then he has breached the duty that he owes to his customers. You could then run through the factual and legal cause to prove that the breach caused the damage that was suffered by not holding up his duty to warn.

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dsb83
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Re: Torts Duty Question

Postby dsb83 » Mon Dec 10, 2012 8:55 pm

swimmer, I thought about the malpractice approach but mechanics aren't really the type of professionals that that applies to.

JG, thanks. I'm good from then on and I have a sense that he has a duty to warn, but I need to explain why he has that duty... Aside from malpractice, we generally learned duty along the lines of the "risk creation" rule for misfeasance...if actor whose condcuts creates risks has a duty to use reasonable care. Nothing the mechanic did created risk, but it's something about the relationship that creates the duty. My other inclination that it has to do somehow with the contract, express or implied, for the maintenance work, but can't find anything to verify that.

JG7773
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Re: Torts Duty Question

Postby JG7773 » Mon Dec 10, 2012 9:30 pm

dsb83 wrote:swimmer, I thought about the malpractice approach but mechanics aren't really the type of professionals that that applies to.

JG, thanks. I'm good from then on and I have a sense that he has a duty to warn, but I need to explain why he has that duty... Aside from malpractice, we generally learned duty along the lines of the "risk creation" rule for misfeasance...if actor whose condcuts creates risks has a duty to use reasonable care. Nothing the mechanic did created risk, but it's something about the relationship that creates the duty. My other inclination that it has to do somehow with the contract, express or implied, for the maintenance work, but can't find anything to verify that.


He has the duty to warn because presumably he is a professional, which would come under §299A.

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dannynoonan87
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Re: Torts Duty Question

Postby dannynoonan87 » Mon Dec 10, 2012 9:48 pm

I think this is super dicey because we learned that car owner's are ALWAYS liable (vicariously) for injury that they cause with their car. Even if the mechanic missed something, the driver can't just blame the mechanic.

So is your hypo about him suing the mechanic for contribution?

swimmer11
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Re: Torts Duty Question

Postby swimmer11 » Mon Dec 10, 2012 10:12 pm

Eh, at least in my class you can argue anyone is a professional. A professional is someone who has extra knowledge or expertise, needed to go extra schooling, has a certificate etc.

Doctors are not the only "professionals:

SportsFan
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Re: Torts Duty Question

Postby SportsFan » Mon Dec 10, 2012 10:23 pm

swimmer11 wrote:Eh, at least in my class you can argue anyone is a professional. A professional is someone who has extra knowledge or expertise, needed to go extra schooling, has a certificate etc.

Doctors are not the only "professionals:

Yeah this is similar to how I learned it, and how I'd argue it on an exam.

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dsb83
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Re: Torts Duty Question

Postby dsb83 » Mon Dec 10, 2012 10:34 pm

Okay, that helps some. Thanks. We mainly focused on medical malpractice. So would I then argue breach by saying an expert could be used to establish custom in the trade obligates a mechanic to warn customers of problems? It's the liability for non-feasance I'm hung up on. Also, in the problem the guy crashes and injures himself and a third party. The liability should extend to the third party right? So long as there aren't any proximate cause issues?

wLaw_candidate
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Re: Torts Duty Question

Postby wLaw_candidate » Tue Dec 11, 2012 1:14 am

dsb83 wrote:Okay, that helps some. Thanks. We mainly focused on medical malpractice. So would I then argue breach by saying an expert could be used to establish custom in the trade obligates a mechanic to warn customers of problems? It's the liability for non-feasance I'm hung up on. Also, in the problem the guy crashes and injures himself and a third party. The liability should extend to the third party right? So long as there aren't any proximate cause issues?




First, if custom is dispositive then you can argue that it is the custom for mechanics that they warn their customers of any future danger that might arise when they take upon a reasonable inspection of the car. However, if the custom is not probative and not dispositive then you would argue that as a policy that the courts will find that if a whole mechanical industry lacks reasonable care in not checking for inspections that it will modify the custom in order to allow for a reasonable standard(T.J. Hooper).

However, as mentioned before by another member the special relationship arises from two areas, one privity of contract(Winterbottom), and the nature of the business and its consumers. The latter is a more stronger argument. In Baker v. Fenneman & Brown Properties, LLC. — the court determined the ∆ had a special relationship between the plaintiff because they were a customer, and seeing that the π was sick they should have called emergency services. The business induced the customer to come in and therefore a relationship arises. As in the mechanic's scenario he has an affirmative duty to warn the customer of the possibility of his brakes not working due to a faulty pin. In Baker, the court analyzes that if a business doesn't ensure to call emergency services when customers happen to fall sick without the contribution of the business they will loose customers. Customers would not like to see that they are coming in to purchase something and the business owner doesn't show concern. The mechanic needs his customers and the customers need him, and therefore they expect that the mechanic will look at for them.
Another concept is that the burden of the mechanic to warn the driver is less than the magnitude of the loss from his customer wrecking their car(till the point they can't bring it back into the mechanic for inspection but rather dump it in the junkyard) times the probability of the customer getting into an accident with that worn part.

And finally actual cause keeps on going...

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nyg22
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Re: Torts Duty Question

Postby nyg22 » Tue Dec 11, 2012 1:17 am

How about duty based on reliance? (See Marsalis)

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hoos89
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Re: Torts Duty Question

Postby hoos89 » Tue Dec 11, 2012 4:54 pm

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Last edited by hoos89 on Fri Jul 04, 2014 12:15 pm, edited 1 time in total.

VyingDestiny
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Re: Torts Duty Question

Postby VyingDestiny » Tue Dec 11, 2012 6:23 pm

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Last edited by VyingDestiny on Thu Jun 13, 2013 10:50 pm, edited 1 time in total.

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Redamon1
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Re: Torts Duty Question

Postby Redamon1 » Thu Dec 13, 2012 8:24 pm

dannynoonan87 wrote:I think this is super dicey because we learned that car owner's are ALWAYS liable (vicariously) for injury that they cause with their car. Even if the mechanic missed something, the driver can't just blame the mechanic.

So is your hypo about him suing the mechanic for contribution?


This. Maloney v. Rath

BeachandRun23
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Re: Torts Duty Question

Postby BeachandRun23 » Fri Dec 14, 2012 5:12 am

You said he brings his car in for "basic maintenance." What did the facts say exactly? Was he bringing the car in for inspection? Or was it just the oil change? If it was for an inspection, I think a reasonable person would assume the mechanic is inspecting the car and if he finds a problem he will tell the client. I think most reasonable mechanics would do that here. I think he breached the standard of care.

My torts class didnt cover all the fancy stuff about professional relationships/malpractice but I'd also argue they had a special relationship here so he had a duty to warn. If you dont have a case on point, compare it to the ones you do have establishing special relationships in other areas of the law.

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reasonable_man
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Re: Torts Duty Question

Postby reasonable_man » Fri Dec 14, 2012 10:14 am

This is how we do it in the grown up world kids:

"In Rodriguez v. Presbyterian Hosp., 259 A.D.2d 310, 688 N.Y.S.2d 120 (1999), the Appellate Division was faced with determining whether a subcontractor could be held liable for failing to go beyond its contract to detect and warn of other latent hazards or defective conditions. The Court held that a subcontractor cannot be held liable for failing to go beyond the limits of its contract, even if a resulting, foreseeable-harm befell the Plaintiff. Id. at 122.

Similarly in Swade v. Nassau Valve & Supply Corp., 288 A.D.2d 370, 734 N.Y.S.2d 85, 86 (2001), the Appellate Division declined to extend liability to a defendant for its employee's failure to go beyond the realm of her duties and assist the plaintiff, truck driver, in loading his truck. Id. at 85-86. See also Lippman v. Island Helicopter Corp., 248 A.D.2d 596, 670 N.Y.S.2d 529, 529-30 (1998), H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167-68, 159 N.E. 896 (1928). A defendant cannot be held liable for failing to do more than what he was required to do. Under these authorities, Wackenhut did not owe the Plaintiff a duty of care." See, Gray v. Wackenhut Services, Inc., 721 F. Supp. 2d 282, 289 (S.D.N.Y. 2010) aff'd, 446 F. App'x 352 (2d Cir. 2011).

Unless the patron came in for an inspection, the failure to report another defect allegedly discovered during his work should not be actionable (and good luck proving he actually saw it during the work he performed - people are not always truthful at depositions). In reality, a plaintiff's attorney may attempt to make a case out of OP's scenario in hopes of settling the case. Depending on venue, if the case gets beyond the summary judgment stage and is heard by a jury (stacked with jurors that may not care about the finer points of duty, breach and causation), the posibility of a large verdict exists; which will often motivate settlement.

helfer snooterbagon
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Re: Torts Duty Question

Postby helfer snooterbagon » Fri Dec 14, 2012 12:11 pm

reasonable_man wrote:This is how we do it in the grown up world kids:

"In Rodriguez v. Presbyterian Hosp., 259 A.D.2d 310, 688 N.Y.S.2d 120 (1999), the Appellate Division was faced with determining whether a subcontractor could be held liable for failing to go beyond its contract to detect and warn of other latent hazards or defective conditions. The Court held that a subcontractor cannot be held liable for failing to go beyond the limits of its contract, even if a resulting, foreseeable-harm befell the Plaintiff. Id. at 122.

Similarly in Swade v. Nassau Valve & Supply Corp., 288 A.D.2d 370, 734 N.Y.S.2d 85, 86 (2001), the Appellate Division declined to extend liability to a defendant for its employee's failure to go beyond the realm of her duties and assist the plaintiff, truck driver, in loading his truck. Id. at 85-86. See also Lippman v. Island Helicopter Corp., 248 A.D.2d 596, 670 N.Y.S.2d 529, 529-30 (1998), H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167-68, 159 N.E. 896 (1928). A defendant cannot be held liable for failing to do more than what he was required to do. Under these authorities, Wackenhut did not owe the Plaintiff a duty of care." See, Gray v. Wackenhut Services, Inc., 721 F. Supp. 2d 282, 289 (S.D.N.Y. 2010) aff'd, 446 F. App'x 352 (2d Cir. 2011).

Unless the patron came in for an inspection, the failure to report another defect allegedly discovered during his work should not be actionable (and good luck proving he actually saw it during the work he performed - people are not always truthful at depositions). In reality, a plaintiff's attorney may attempt to make a case out of OP's scenario in hopes of settling the case. Depending on venue, if the case gets beyond the summary judgment stage and is heard by a jury (stacked with jurors that may not care about the finer points of duty, breach and causation), the posibility of a large verdict exists; which will often motivate settlement.


I would have gone a different way http://www.youtube.com/watch?v=4lURHNLrwtc

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dannynoonan87
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Re: Torts Duty Question

Postby dannynoonan87 » Fri Dec 14, 2012 10:40 pm

Redamon1 wrote:
dannynoonan87 wrote:I think this is super dicey because we learned that car owner's are ALWAYS liable (vicariously) for injury that they cause with their car. Even if the mechanic missed something, the driver can't just blame the mechanic.

So is your hypo about him suing the mechanic for contribution?


This. Maloney v. Rath


non-delegable duty'd

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dsb83
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Re: Torts Duty Question

Postby dsb83 » Tue Dec 18, 2012 2:30 am

Thanks for the responses. Torts exam is over and of course something like this didn't come up, though another kind of interesting affirmative duty issue did.

For what it's worth, I went and talked to professor...he co-written a torts casebook for some years and is really well recognized in products liability(contributed to the 3d restatement). After a slight hesitation, he said the mechanic would have an affirmative duty based on a special relationship. Emphasized that special relationships aren't limited to the clearly recognized ones we encounter most often. He said the duty would be less likely to extend to the injured third party, however, but compared it to the asbestos cases where third-parties suffered asbestos injuries from handling the clothes of a factory worker who worked with asbestos. He also said he would certainly have no duty if he had not seen the worn peg.


Hope everyone's exams are going or went well.




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