Thus the reasonable forseeability test is limited and

Info icon This preview shows pages 7–9. Sign up to view the full content.

View Full Document Right Arrow Icon
Thus the reasonable forseeability test is limited and controlled through the application of ‘salient features’ or significant factors in the relationship between D & P. The SALIENT FEATURES APPROACH COMPLIMENTS OR SUPPLEMENTS RF. Used on an ‘incremental approach’ (case by case basis) A non exhaustive list Floodgate argument: Will allowing this open a floodgate of litigation? Illegal Activity: If the plaintiffs were engaged in legal activity, the court is less likely to find a duty of care existed Assumption of Responsibility Did the defendant create an assumption in the plaintiff that they were responsible? Did the plaintiff rely on the assumption? Proximity: The court will consider whether there was proximity Control: Did the defendant control the situation? If they did, it is more likely that there was a duty Legitimate Business Activity: Will the imposition of a duty impinge on legitimate business activity? Vulnerability: How vulnerable was the plaintiff- could they have done more to protect themselves? Area of law: Is there a better area of law to deal with the situation? Voluntary Assumption of Risk: Did the plaintiff assume the risk in what they were doing? Duties of the Defendant: Would the imposition of a duty here conflict with an existing duty that the defendant has? Example- Sullivan v Moody the doctor had a duty to act in the best interest of the child by reporting the abuse, and a duty to the father would conflict with this.
Image of page 7

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Indeterminancy of liability Could thus be liable to anyone (Sullivan v Moody) Some salient features are relevant to certain kinds of cases; some less so. A few (not all) examples are noted. eg plaintiff’s vulnerability (inability to protect self)? (like reliance?): see Crimmins ; Pyrenees ; unlike Heyman (ie not vulnerable); eg D’s assumption of responsibility (if any?)? ( Nagle ) eg D’s knowledge / awareness of risk? ( Crimmins ; Pyrenees ; unlike Graham ) eg D’s control over situation? ( Crimmins ; unlike Graham ; unlike Agar ) eg indeterminacy of class affected by D’s conduct? ( Sullivan ; unlike Perre ); eg or is the class ascertainable? (as in Perre ) eg autonomy of D too constrained if find a duty? (unlike Lowns, re dr’s professional setting / context) eg lead to defensive practices? ( Sullivan; Hill; Giannarelli ) eg lead to diversion of resources? ( Sullivan; Hill ) eg how would the coherence of the law be affected (ie other relevant torts? contract? a relevant the statutory framework?) ( Sullivan; Tame ; Graham – statutory framework) eg proximate? (ie prox can still be a factor; but not used as over-riding control in Deane sense ( Sullivan ) CRITICISMS OF THE SALIENT FEATURES APPROACH A fundamental criticism of this approach is that it has not provided a methodology but is simply a list of potentially relevant “legal policy” factors whose prioritizing and significance in any given circumstance depends on a value judgment. These “salient features” have been listed above. No over-arching principles guide the application and importance of these salient features. The weighing of such factors involves an
Image of page 8
Image of page 9
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern