See Moch in note 8 on p. 146. This is actually an important case, and it will come back. For now, though we just need to note the main thing. Suit for failure by water company to supply enough water to put out the fire in the plaintiff's house. So, this is a case where someone is providing assistence, and we've learn that there's a duty to do so with reasonable care. Fortunately, we've got Cardozo to the rescue: the duty to go forward arises if the act has advanced to the point that stopping would lead to injury as opposed to witholding further benefit. So supplying water is providing a benefit, I guess.
A bit fuzzy to say the least. This is judicial realism, pretty much: if we don't absolve the company from liability, we'll have some bad consequences. It's a confusing approach nevertheless. But compare, e.g., with Belle Realty, later.
So, is there a duty to third parties on the part of letter-writers? There's no relationship.
So when do we want to impose this duty? It's a long case, because it was a case of first impression. There's a duty not to misrepresent misleadingly, but you can only sue if the misrepresentation caused injury. And we also require that the be a foreseeable risk to the third party.
So was the injury a foreseeable result of the misrepresentation? In this case, yes. And in fact the school district might have not hired Gadams had they known the facts. Was it a misleading misrepresentation? After all, there was just an absence if information: a non-disclosure.
The court says that since the letters said some things about his character, it became a misleading half-truth when they omitted the bad stuff.
There'd probably be no duty of disclosure if they just didn't say anything. They have the right to say nothing-- it's the half-truths that create the duty and the potential negligence.
Why shouldn't there be liability if they just keep silent? After all, they're in possession of some pretty damaging information. But it's the same thing as the right not to save people. We just generally have that policy.
How often does this stuff come up, though? We don't often have the desire to protect job candidates in this way. But whatever the case might be, you either have to be silent or disclose everything.
Podar had an interest in Tarasoff, who spurned him, and he went nuts. He had 7 sessions with Dr. Moore, who felt that Podar needed to be committed for the protection of others. He asked the police to initiate commitment proceedings, and they did, but then decided that he wasn't such a threat and let him go with a warning to stay away from Tarasoff.
And nobody at all said anything to Tarasoff through all of this. Moore probably felt bound not to do so.
Many cases apply this court's findings, but hardly any of them have such a predictable set of facts. This case is particular in that regard.
Podar and Tarasoff were a classical bad match for one another.
Podar came from Indian Institute of Technology (where classes were all male, and you weren't even allowed to talk to females), and comes to UC Berkeley in the 1960s.
Shoots her with a pellet gun, chases her outside, and stabs her 17 times. There was a criminal prosecution (eventually convicted of 2nd-degree murder, after appeals that went all the way to CA SC). So there's a desire to assign blame for the fact that no prevention was done: of course there was fault with Podar, but it was upsetting that nobody lifted a finger to help Tarasoff.
Podar, incidentally, now seems to be happily married (to a lawyer) in India. No prison for him, for bizarre procedural reasons.
The issue: could plaintiffs amend their complaint to include a cause of action against the psychologist?
Defendant claims no duty of care to Tatiana Tarasoff. In general, there's no legal duty to warn people: it's like the fact that there's no legal duty to save people. Is the fact that this is a counselor who has some additional information different?
What's the relationship between the various parties? Clearly there's a relationship with Podar. And he didn't contribute to her harm by ceasing to follow through on a warning already begun.
This gets near an informed consent issue: you need to tell the patient all the consequences of treatment, and if incriminating them is one of the consequences, you'd have to tell them.
Nevertheless, if you have a duty to the patient, and the danger to the third party is foreseeable, the court says you've got a duty to exercise reasonable care for the third party. Later on, this actually gets enshrined in statute: it's not enough to tell only the police-- if the victim is identifiable, there's a duty to warn the victim or the family.
So that's an interesting wrinkle: we may not know who the potential victim is. Maybe it's "all women?" Or maybe it's not fully foreseeable that there even will be a victim. See, e.g., Thompson in note 5 on p. 166: the complaint is dismissed because there was no identifiable victim.
In the world of counseling, this has real name-recognition. People see it as a "duty to warn" case. And indeed, they do issue warnings when they think there have been credible threats. But the problem of predicting future violence remains. The Tarasoff duty only arises if the harm is foreseeable. Therapists have only a limited ability to anticipate when someone will act upon a threat. So maybe we're getting too many warnings, and therapy is being undermined, or therapists are avoiding taking on dangerous patients. And both of those are undesirable results.
As a legal matter, Tarasoff doesn't require a therapist to predict accurately-- it just means you have to act reasonably in a situation that is predictable. But obviously people are scared of juries, because you never know if they'll find that you acted reasonably.
And see also Bella in note 5 on page 166: no duty when the patient harms self or property. No duty to warn the parents. The Tarasoff means a foreseeable victim who is not the perpetrator.
What if the person who would benefit from the warning is a third party? 1993, Bradshaw (not in the book). Rocky Mountain Spotted Fever: reason to think a spouse might also be infected by the same ticks creates a duty to warn the spouse, even though the patient's disease is not communicable.
It's a little tougher on physicians than on psychiatrists. They, historically had a duty to warn, which was gradually eroded in the name of patient privacy.
So the question here isn't whether the statute was violated: it's just whether the statute creates a duty that gives rise to a tort claim. Without that statute, the nurse wouldn't have gone to every classroom to inspect kids' spines.
Note 4 on p. 172: VT has a statute creating a limited duty to rescue. In the absence of a statute the nurse wouldn't have had a duty to save kids from scoliosis. Similarly, statutes creating a duty to report child abuse.
OK, the statute creates a standard of behavior, and it requires the nurse to act for the prevention of scoliosis. And the nurse didn't in this case, and the child was harmed.
A "private right of action": not everybody can go forth with a claim against an entity if there isn't something in the law that creates a right that has been violated. So when you are basing your claim on something in the statute, you need a statute that says you can do this.
So there's a three part test, which the court lays out nicely for us. What's the difference between a legislative purpose and a legislative scheme? Basically the ends vs. the means.
Tort is kind of a blunt instrument for enforcement: we might prefer an incentive model vs. a strongly punitive one. So the legislative scheme here is to ensure that there's wide recognition of the scoliosis problem, but not to go after individuals when they are lax in their duties. So the school district has immunity.
But the plaintiffs are wily: the immunity is for misfeasance, not for non-feasance. The court isn't having it: non-performance is a form of poor performance. And the huge potential liability awards here might be vast overkill, compared to what the statute intended.
So the question is whether Con Ed owes a duty to this particular tenant (who suffered harm in an area of the building where he wasn't a Con Ed customer).
Interesting discussion of privity. Remember Moch (p. 146, note 8: provision of water by a utility when plaintiff's building burns). That time, we had the action-inaction test. Privity here is slippery: if he'd gotten hurt in his own apartment, Con Ed would recover, but since he stepped out, he can't. Basically, the court is saying that Con Ed has a duty of care to everyone (not just limited by contract), but for policy reasons, we have to do some line-drawing, because unlimited liability would mean that nobody would want to provide electricity to NY, and we can't have that.
So it's line-drawing to be sure, and it excludes lots of plaintiffs. It's absurd, but necessary, in other words.
They could have taken other approaches: just simply declaring that they'd only hear the most egregious cases, or only certain types of injuries, or some such. But privity works, and it sort of nice in that respect.
Then in Hansen (1992), a minor, who drowns while intoxicated has a claim against the social host.
Here we have an identical criminal act: violation of the statute causes harm. Shouldn't we make the social host liable?
Well, we look at the statutory purpose, and the circumstances, and decide that this wasn't the intent of the statute: there's a parental exception to the statute. This is a leap: the parental exception is about not stepping in to parenting. The analogy between parent and social host is not too strong. Maybe the purposes of the statute are to protect minors from the dangers of alcohol, and to cut down on drunk driving: those goals would be served by imposing liability here.
Note that this is a plurality opinion, not a majority.
Is it a good line to draw (between social hosts and commercial vendors)? Maybe, maybe not. How about the line between harm to intoxicated minors and harm caused to strangers by intoxicated minors? Well, that's how the case goes.
This tort is all about: who knew about the elements of the risk, and was nonetheless instrumental in providing the means of the harm. The great aunt figuratively put a time bomb in the kid's hands. This is stronger than in Tarasoff, in which the therapist might think the danger might pass: here the danger doesn't ever pass, in some sense.
But should we require that dealers find out what peoples' driving records are. It's legal to own a car without a license, for example. Placing this burden on the seller will grind commerce to a halt. But the court says it might be worth a try, if the plaintiff can show the dealer's knowledge.
So the duty is based on the particular circumstances.