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“One of the essential elements of a negligence cause of action is breach of a legal duty to act reasonably under the circumstances. Generally, one who has not created a peril has no duty to affirmatively act so as to prevent harm to third persons. Absent an applicable statute, the law does not require one to act as a “Good Samaritan.” However, the law does impose a legal duty to affirmatively act (to protect someone else from danger or to control the conduct of a third person) if there is a “special relationship” between defendant and the person in danger or the third person creating the danger. “Special relationships” rest on various grounds. Some are inherently “special”; others arise from a contract (written or oral) or from detrimental reliance on an express or implied promise (e.g., to provide protection); and still others are imposed by statute or regulation.

First, the court must determine whether there is a special relationship between the parties or other circumstances giving rise to an affirmative duty to protect; Second, if so, the court must consider the Rowland factors to determine whether relevant policy considerations limit that duty (the foreseeability of the specific harm suffered, the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and the injury suffered, the moral blame attached to defendant’s conduct, the policy of preventing future harm, the burden to 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).

Businesses, such as shopping centers, restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control (e.g., parking lots), against reasonably foreseeable criminal acts of third parties. The nature of the reasonable steps required of the business depends on the circumstances. At the very least, it must undertake reasonable and minimally burdensome measures to assist customers and invitees who face danger from imminent or ongoing criminal conduct occurring on the premises or in the presence of the business owner/manager or its employees—e.g., to call police when witnessing an assault (unless doing so might increase the danger or lead to reprisals). A psychotherapist and patient are in a special relationship creating a duty on the part of the psychotherapist to warn foreseeable third person victims of the patient’s known or apparently dangerous propensities. Similarly, the special relationship between physician and patient obligates the physician to warn the patient or foreseeable third party potential victims if the patient’s medication or condition makes certain conduct dangerous to others. A psychotherapist (as defined by Ev.C. § 1010) is immune from liability for failure to protect from (or failure to predict and protect from) a patient’s threatened violent behavior unless the psychotherapist learns the patient has made a “serious threat of physical violence against a reasonably identifiable victim or victims.” Further, a psychotherapist who learns of such a threat is immune from liability if the psychotherapist makes “reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.” The special relationship between a physician and patient creates a duty to warn the patient that he or she has a communicable or infectious disease or condition (e.g., HIV) that could be transmitted to others via sexual relations (or other close/intimate contact). Because of the foreseeable risk of harm to others, this duty extends to third persons with whom the defendant physician does not have a special relationship and even if they are unknown and unidentifiable; i.e., in such cases, the most reasonable step in discharging the physician’s duty of care may be to warn the patient, who presumably will follow the physician’s advice. The special relationship between psychiatrist or hospital and mental health patient creates a duty to take reasonable steps to prevent a foreseeable suicide. There is a special relationship between a school district (or its employees) and students, so as to impose an affirmative duty on the district/employees to take reasonable steps to protect students from reasonably foreseeable risks of harm.”

[California Practice Guide: Personal Injury [certain citations omitted]]


Post Author: lawofficesofjamesrdickinson