Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 3

FACTS On August 9, the plaintiff's father, Darrell Soldano, was shot and killed at the Happy Jack Saloon. The defendant owns and operates the Circle Inn, an eating establishment across the street from the Happy Jack Saloon. On the night of the shooting, a patron of the Happy Jack Saloon came into the Circle Inn and informed the Circle Inn bartender that a man had been threatened at Happy Jack's. The patron requested that the Circle Inn bartender either call the police or allow the patron to use the Circle Inn phone to call the police. The bartender refused either to make the call or to allow the Happy Jack patron to use the phone. The plaintiff alleges that the actions of the Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent. The defendant maintains that there was no legal obligation to take any action, and therefore there was no duty owed to the decedent. The trial court dismissed the case on the defendant's motion for summary judgment.
DECISION The appellate court reversed and remanded the case for trial.
OPINION Andreen, J. There is a distinction, well rooted in the common law, between action and nonaction. [Citation.] It has found its way into the prestigious Restatement Second of Torts (hereafter cited as ''Restatement''), which provides in section 314: ''The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does nor of itself impose upon him a duty to take such action.'' ***
As noted in [citation], the courts have increased the instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule.
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Section 314A of the Restatement lists other special relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance. [Citation.]
Here there was no special relationship between the defendant and the deceased. It would be stretching the concept beyond recognition to assert there was a relationship between the defendant and the patron from Happy Jack's Saloon who wished to summon aid. But this does not end the matter.
It is time to re-examine the common law rule of nonliability for nonfeasance in the special circumstances of the instant case.
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We turn now to the concept of duty in a tort case. The [California] Supreme Court has identified certain factors to be considered in determining whether a duty is owed to third persons. These factors include:
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citation.]
We examine those factors in reference to this case. (1) The harm to the decedent was abundantly foreseeable; it was imminent. The employee was expressly told that a man had been threatened. The employee was a bartender. As such he knew it is foreseeable that some people who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of decedent's injury is undisputed. (3) There is arguably a close connection between the employee's conduct and the injury: the patron wanted to use the phone to summon the police to intervene. The employee's refusal to allow the use of the phone prevented this anticipated intervention. If permitted to go to trial, the plaintiff may be able to show that the probable response time of the police would have been shorter than the time between the prohibited telephone call and the fatal shot. (4) The employee's conduct displayed a disregard for human life that can be characterized as morally wrong: he was callously indifferent to the possibility that Darrell Soldano would die as the result of his refusal to allow a person to use the telephone. Under the circumstances before us the bartender's burden was minimal and exposed him to no risk: all he had to do was allow the use of the telephone. It would have cost him or his employer nothing. It could have saved a life. (5) Finding a duty in these circumstances would promote a policy of preventing future harm. A citizen would not be required to summon the police but would be required, in circumstances such as those before us, not to impede another who has chosen to summon aid. (6) We have no information on the question of the availability, cost, and prevalence of insurance for the risk, but note that the liability which is sought to be imposed here is that of employee negligence, which is covered by many insurance policies. (7) The extent of the burden on the defendant was minimal, as noted.
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We acknowledge that defendant contracted for the use of his telephone, and its use is a species of property. But if it exists in a public place as defined above, there is no privacy or ownership interest in it such that the owner should be permitted to interfere with a good faith attempt to use it by a third person to come to the aid of another.
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We conclude that the bartender owed a duty to the plaintiff's decedent to permit the patron from Happy Jack's to place a call to the police or to place the call himself. It bears emphasizing that the duty in this case does not require that one must go to the aid of another. That is not the issue here. The employee was not the good samaritan intent on aiding another. The patron was.
INTERPRETATION Although a person may not have a duty to help another, in a case such as this, a person has a duty not to hinder others who are trying to help.
CRITICAL THINKING QUESTION Should the courts go beyond the rule of this case and impose an affirmative duty to go to the aid of another person who is in peril if it can be done without endangerment? Explain.