HARPER V. HERMAN case brief

 HARPER V. HERMAN

• P was a guest on D’s boat, and without warning dove headfirst into three feet of water

• Harper severed his spinal cord and was rendered a quadriplegic

• Harper was invited by a friend of D’s – a tag along guest

• In order for D to have a duty, there must be a special relationship – common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities for self-protection (p. 133)

• In order for Herman to have had a duty, there must have been a special relationship – Herman must have had custody over Harper and Harper must have been deprived of opportunity for self-protection

• This is not the case:

• Harper was 20 years old. He was enough of an adult to have realized that diving off headfirst into the water may not have been a good idea

• Harper was not particularly vulnerable, D did not hold power over Harper’s welfare

• Even though D knew the water was shallow, knowledge alone without duty to protect is insufficient to establish liability for negligence

• Policy argument: Herman could have easily warned Harper that the water was shallow, so a cost-benefit analysis would point toward the court saying that there was a duty. So why does the court not establish a duty to rescue? Courts do not want to force a duty to rescue because they don’t want to endanger more people. These were the easy cases, but there are tons of scenarios where a duty to rescue would endanger the rescuers themselves. No requirement to act in a heroic fashion.

• Epstein: the court system cannot violate individual autonomy, even though morally people should rescue if they can. Libertarian justification.

non-negligent injury

• Maldonado – p. 135 – duty to rescue when the actor knows or has reason to know that his conduct has caused the harm to the victim as to make him helpless and in need of rescue

Restatement 322

non-negligent risk

• Simonsen/Menu/Tresemer – one who has done an act and then realizes that it created a risk of causing physical harm to another is under a duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk (p. 137)

Restatement 321

reliance

• Morgan/Mixon/Santy (p. 137) liability should exist if the plaintiff can establish that the victim relied upon a promise and would have acted differently without it