non balancing tests are pure duty tests in the sense that they ask a question

Non balancing tests are pure duty tests in the sense

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non- balancing tests are pure duty tests in the sense that they ask a question about foreseeability and then once a duty is found it would have to go to the jury to see if that duty was breached. But the balancing test, which the court prefers here is not a pure duty test. It’s a duty test with the breach question folded into it. Under a guise of a duty inquiry, the court is really also saying there is no breach as a matter of law. The court is worried that the jury will find a breach on the sheer fact that the P was harmed and therefore Wal-Mart clearly could and should have done more in terms of security. That is the worry here going forward, that they are determining breach. Duty approach Normally Participation in the creation of the risk + foreseeability. Under a pure approach, even whether there have been prior similar incidents should be a question for the jury on whether the D breached a duty. The balancing test is an extreme version, which basically decides that the D has or has not breached a duty, at least insofar as Judge Learned Hand’s B < PL formula is concerned. They are building some factual matters normally found by the jury and building it into the definition of duty. Riss. v. City of New York Historically, governments had sovereign immunity. That is since faded, though not completely… Ms. Riss was threatened by her ex-bf, and she called the police and asked for protection and claims they failed to protect her (her ex-bf hired someone to throw lye in her eye and she became blind in one eye and left with little vision in the other) The court here says there is no duty, not because of non-feasance, but rather because of resource allocation. The thought is that police protection involves the allocation of scarce resources and how to do that is really a legislative and executive decision and it’s a judgment call for the police to make and not for courts and juries to second guess. The argument for no duty is quite different here than in normal situations. The police could not have responded to Riss’ call the
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same way a doctor could have to a sick patient, asking “how much is my services worth to you?” (There’s no freedom of contract situation at play). The court says that if the police however undertake responsibilities to particular members of the public an expose them without adequate protection to the risks which then materialize into actual loses, they can be held liable. See Schuster where duty was found when police failed to protect a person who informed about a criminal that the FBI was looking for. Riss says that faced with limited resources, police have to make judgments about when to get involved and the courts are reluctant to meddle with this. With Schuster, the police are already involved with this person. There have already been dealings with the P. It speaks to a special relationship (reasonable reliance on Ps part) (Note 2 on pg. 232). Similarly, the police have already gotten involved in Sorichetti, creating reliance.
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  • Fall '07
  • Bernstein
  • Tort Law, duty, reasonable care

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