Contracts review: Enforceability + Consideration

Phew, with just 5 days until my Contracts final, i present you part 1 of my class outline ;)

Principals of enforceability:

·         Party-based

o   Will principle: Commitments are enforceable because the party has willed or freely chosen to be bound by the commitment.

§  Limitation: Inquiry into the subjective state of mind of the promisor.

o   Reliance principle: Based on the theory that we ought to be liable for harm caused by our verbal behavior.

§  Limitation: Determining whether a person has reasonably relied upon a promise depends on what most people would do.

o   Restitution principle: Seeks to prevent unjust enrichment of a promisor who seeks to go back on their word.

§  Limitation: Applies only to unjust enrichment, thus more narrow than previous two principles

·         Standard-based

o   Efficiency principle: Do the benefits exceed the cost? Can interpret contracts generally (law as a whole) or particularly (individually).

§  Limitation: Can observers ever have information about value-enhancing exchanges independent of the demonstrated preference of the market participants? If such information is available, why bother with contract law at all?

o   Fairness principle: Attempts to evaluate the substance of the transaction to see if it is fair.

§  Limitation: Presupposes a standard of value by which the substance of an agreement can be objectively measured.

·         Process-based

o   Bargain principle: To constitute consideration, a performance or return promise must be bargained for.

§  Advantage: Existence of a bargain is evidence that parties intended to be bound.

§  Limitation: Does nothing for promises to keep offers open, promises to release a debt, promises to modify an obligation, etc.

Consideration:

·         Distinguish from gratuitous promises: Gift promises, only effective upon actual delivery of the thing that was promised. They are revocable any time before delivery.

o   Johnson v. Otterbein University: $100 donation to university

·         Bargain theory: A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise, and is given by the promisee in exchange for that promise.

o   Kirksey v. Kirksey: Sister Antillico

o   Performance: May be an act other than a promise; forbearance; the creation, modification, or destruction of a legal relation.

o   Performance may be given to a third person. May be given by a third person

·         Detriment: The abandonment of a legal right, or refraining from exercising a legal right by one party. Must be induced by the other promise.

o   Hamer v. Sidway: Nephew gives up drinking

·         Past consideration: Past consideration cannot serve as the requirement for consideration; unless the parties had previously agreed that the performance was rendered with the understanding that compensation was made. What was done as a mere favor cannot be later turned into consideration.

o   Moore v. Elmer: Clairvoyant prediction man will die before 1900.

·         Moral consideration: For moral obligation to be sufficient consideration there must have been some pre-existing obligation, which has become inoperative by positive law. Is acceptable when a material benefit is received.

o   Permissible: Debts barred by statute of limitations, debts incurred by infants, and debts of bankrupts.

o   Mills v. Wyman: Son falls ill, father promises to pay for the son.

§  Kindness and service was not bargained for. Not done at dad’s request.

o   Webb v. McGowin: Man saves another man’s life. Man promises to pay to support

§  Permissible here, because a material benefit was received, and a subsequent express promise to pay was made.

·         Pre-existing duty: A common law doctrine that renders unenforceable a promise to perform a duty, which the promisor is already legally obligated to perform, for lack of consideration. One who has a legal duty to perform an obligation cannot recover additional funds for performing that duty.

o   Stilk v. Myrick: Captain of ship attempts to reform contract with sailors.

·         Contract modification: Modification of the contract after it has been properly formed. Permissible where unforeseen circumstances make performance of the contract unduly burdensome.

o   U.C.C. 2-209: “an agreement modifying a contract within this Article needs no consideration to be binding”

o   Brian Construction v. Brighenti: Construction contract to perform all work requisite, discovered excavation that needed to be done, neither foresaw.

·         Adequacy of Consideration: In order for a contract to be valid, valuable consideration must be exchanged between the parties.

o   Newman & Snell’s State Bank v. Hunter: No valuable consideration, worthless piece of paper of husband’s insolvent stock.

Final Civil Procedure Case of the Year

Parklane Hosiery Co. v. Shore:

439 U.S. 322 (1979)

Issue: Whether a litigation who was not a party to a prior judgment may nevertheless use that judgment "offensively" to prevent a defendant from relitigating issues resolved in the earlier proceeding

Rule: Mutuality of Estoppel                                                                                                                                  

Application: Collateral Estoppel has a dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.

-Mutuality Doctrine: Neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment

-Criticized for failing to recognize the difference in position between a party who has never litigated an issue and one who has fully litigated and lost

-Blonder-Tongue v. University of Illinois: Abandoned the mutuality requirement, at least in cases where a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it to be invalid.

-The present case involves the offensive use of collateral estoppel

-In both the offensive and defensive uses, the party against who estoppel is asserted has litigated and lost in an earlier action

-Why offensive and defensive collateral estoppel are different:

1. Offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive.
1. Defensive prevents a plaintiff from relitigating identical issues by merely "switching adversaries." Strong incentive to join all potential defendants
2. Offensive: Creates the opposite incentive. Plaintiffs adopt a "wait and see" attitude

2. It may be unfair to the defendant
1. If the first suit is for small or nominal damages, defendant may have little incentive to defend vigorously, particularly if future suits are not foreseeable.
2. May be unfair if the judgment relied upon as a basis for estoppel is inconsistent with one or more previous judgments in favor of the defendant
3. Unfair where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result

-Courts have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.

-General Rule (Should be): In cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel

-None of the circumstances that might justify the reluctance to use collateral estoppel are present.

-Will not reward a private plaintiff who could have joined in the previous action, since the plaintiff probably could not have joined.

-No unfairness to defendants in applying offensive collateral estoppel

-Serious allegations in the SEC complaint gave defendants incentive to vigorously defend

-Judgment in the SEC decision was not inconsistent with any previous decision

-Will be no procedural opportunities available to petitioners that were unavailable in the first action of a kind that might be likely to cause a different result.

Second Question: Would the use of offensive collateral estoppel violate the defendants 7th amend. right

-Beacon Theaters: Held: When legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial and "that discretion must whenever possible, be exercised to preserve jury trial"

-Katchen: Recognized that an equitable determination can have collateral-estoppel effect in a subsequent legal action and that this estoppel does not violate the 7th amendment

-Defendants have advanced no persuasive reason why the meaning of the 7th amendment should depend on whether or not mutuality of parties is present.

-The 7th amendment has never been interpreted in the rigid manner advocated by the defendants.

-Galloway:

Conclusion: Yes, can

Parties:

-Plaintiff/Respondent: Shore

-Defendant/Petitioner: Parklane Hosiery Co.

Suits:

-Suit 1: Plaintiff v. Defendant

-Suit 2: SEC v. Defendant

-Obtains judgment first

History:

-Plaintiff brought stockholder's class action against the defendant in a Federal District Court.

-Complaint alleged that the defendant, and 13 of its officers, directors, and stockholders, had issued a materially false and misleading proxy statement in connection with a merger.

-These statements allegedly violated the Securities Exchange Act of 1934, as well as various rules and regulations promulgated by the Securities and exchange Commission

-Sought: Damages, rescission of the merger, and recovery of costs.

-Before Trial: SEC filed suit against defendant in Federal District Court, alleging that the proxy statement that had been issued by defendant was materially false and misleading in essentially the same respects as those that had been alleged in the plaintiff's complaint

-Injunctive relief was requested

-After 4 day trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect.

-Court of Appeals: Affirmed

-Plaintiff then moved for a partial summary judgment, asserting that the defendants were collaterally estopped from relitigating the issues that had been resolved against them in the action brought by the SEC.

-District Court: Denied the motion on the ground that such an application of collateral estoppel would deny the petitioners their 7th amendment right to a jury trial

-Court of Appeals: Reversed

Dissent:

-In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: it eliminates the right entirely and therefore contravenes the 7th amendment.

-Majorities argument: A litigant was not entitled to have a jury determine issues that had previously been adjudicated by a chancellor in equity and that "petitioners have advanced no persuasive reason why the meaning of the 7th amendment should depend on whether mutuality is present

-That is like saying since a party is not entitled to a jury trial in equity, should not have one in law

-To hold that a jury trial is not required is to rewrite the 7th amendment

-It is unfair to apply offensive collateral estoppel where the party who is sought to be estopped has not had an opportunity to have the facts of his case determined by a jury.

-Defendants did not receive a jury trial in the SEC lawsuit

-Several factors favor this position

1. The use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials
2. The opportunity for a jury trial in the second action could easily lead to a different result from that obtained in the first action, and therefore it is unfair to estop defendants from relitigating  

-Even if defendants are collaterally estopped from relitigating whether the proxy was materially false and misleading, they are still entitled to have a jury determine whether plaintiff was injured by the alleged misstatements and the amount of damages.

-Thus, won't save much

Sorry for the shabby notes! I've been working on my outlines ;D

Contracts: Impossibility --- Suez Canal Case

Transatlantic Financing Corporation v. United States:

United States Court of Appeals District of Columbia Circuit

363 F.2d 312 (1966)

Issue: Should Transatlantic be compensated for the added expense of the alternate route?

Rule: Impossibility

-A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost

Application:  Plaintiff claims that admiralty principles and practices require the court to imply into the contract the term that the voyage was to be performed by the usual and customary route (Suez)

-Thus, when Suez was closed, this contract became impossible to perform.

-Therefore, completion of the contract by way of the alternate route, plaintiff should be paid in quantum meruit

-When impossibility is raised, the court is asked to construct a condtion of performance based on the changed circumstances, a process which involves at least three reasonably definable steps:

1. A contingency-- something unexpected-- must have occurred
1. Clearly met. Where no route is mentioned, the usual and customary route is assumed

2. The risk of the unexpected occurrence must not have been allocated either by agreement or custom
1. May be expressed or implied in the agreement, and found in surrounding circumstances, including custom and usage of trade.
1. Circumstances surrounding the contract suggest that risk was allocated to the plaintiff. Can be assumed that the parties were aware of the situation at Suez
1. The tension there likely affected freight rates
2. These circumstances do not always indicate a willingness to accept the risk

3. Occurrence of the contingency must have rendered performance commercially impracticable
1. Transatlantic could have purchased insurance for such a contingency
2. The goods could survive the extra distance, the crew was fit to travel the extra distance
3. The owners of vessels are in the best position to calculate the cost of performance
4. The only factor weighing in plaintiffs favor is the added expense
1. $43,972 above the $305,842 contract price.
2. To justify relief based solely upon added expense, there must be a larger variation in the expected cost and the cost of performance.

-Thus, performance of this contract was no rendered legally impossible

-If the contract is a nullity, plaintiff's theory of relief should have been quantum meruit for the entire trip, rather than for the added expense.

Conclusion: No

History:

-Jul 26, 1956: Gov't of Egypt nationalized the Suez Canal Company, and took operation of the canal

-Oct 2: Voyage charter between the parties to transport wheat from the US gulf port to a safe port in Iran. Indicated the termini of the voyage, but not the route.

-Oct 27: SS CHRISTOS sailed from Galveston for Iran, on a course that would have taken it through the Suez canal.

-Oct 29: Israel invades Egypt

-Oct 31: Great Britain and France invade the Suez Canal Zone

-Nov 2: Egyptian government obstructed the Suez canal with sunken vessels

-Nov 7: Beckmann, representing plaintiff, contacted an employee of the US dept of Agriculture, seeking an agreement for payment of additional compensation for an alternate route.

-Was advised that he was free to file a claim. Employee didn't believe was entitled to compensation

Old English Contracts: Impossibility

Taylor v. Caldwell:

In the King's Bench

3 B. & S. 825 (1863)

Issue: May the parties be excused from a contract when the  thing contracted for no longer exists?

Rule: Impossibility                                                                                                                                                                                                                                                                                          

Application: There was no express stipulation with reference to what would happen in the event of a fire.

-Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages.

-Where the parties have agreed that the contract cannot be fulfilled without the continued existence of a particular thing, that is not a positive contract, but subject to an implied condition.

-In some contracts where a personal good is contracted for (painting, composing a work, etc), and the ability is lost (blindness, etc), the promisor should not be forced to perform.

-The same implications are made for the continued existence of a thing, such as here.

-In contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse performance.

Conclusion: Yes

History:

-May 27, 1861: Parties enter into agreement where defendant leases The Surrey Gardens and Music Hall to plaintiff for June 17th, July 15th, August 5th, and August 19th.

-Plaintiff alleged that defendant breached by not allowing the plaintiffs to have use of the building

-At the time of the agreement, there was a general custom of trade and business that in the event the building was destroyed or so far damaged by accidental fire as to prevent the concerts from being given according to the intent of the agreement, the agreement should be rescinded

-June 11: Music hall is destroyed by an accidental fire.

Trial:

-Verdict for the plaintiff

Appeal:

-Verdict for the defendant

Contracts! Mistake

Lenawee County Board of Health v. Messerly:

Supreme Court of Michigan

417 Mich. 17 (1982)

Issue: Whether appellees should prevail in their attempt to avoid this land contract on the basis of mutual mistake and failure of consideration

Rule: Mistake, rescission

-Contractual Mistake: A belief that is not in accord with the facts (restatement)

-The erroneous belief of one or both of the parties must relate to a fact in existence at the time the contract is executed.

Application: The court of appeals correctly concluded that the parties were mistaken as to the income-producing capacity of the property in question.

-This court agrees

-Appellants assert that there was no mistake in the contractual sense because the defect in the sewage system did not arise until after the contract was executed.

-Appellees respond that the appellants are confusing the date of the inception of the defect with the date upon which the defect was discovered.

-The septic system was defective prior to the date on which the land contract was executed.

-A contract may be rescinded because of a mutual misapprehension of the parties, but this remedy is granted only in the sound discretion of the court.

-Appellants argue that the parties' mistake relates only to the quality or value of the real estate transferred, and that such mistakes are collateral to the agreement and do not justify rescission.

-Appellees contend that in this case, the parties were mistaken as to the very nature of the character of the consideration and claim that the pervasive and essential quality of this mistake renders rescission appropriate.

-Relief is afforded to cases which a mistake affects the essence of the consideration, but not to those cases where mistake affects the quality or value of the consideration

-Both parties mistakenly believed that the property could be used to generate income as rental property. Because it could not be used to human habitation deprived the property of its income-earning potential, thus making it less valuable.

-This mistake cannot accurately be characterized as collateral because it also affects the very essence of the consideration.

-The distinctions between mistakes affecting the value and the essence of the consideration only hinder analysis

-Therefore, A&M and Sherwood are limited to the facts of those cases

-New Rule: Case-by-case analysis, whereby rescission is indicated when the mistaken belief relates to a basic assumption of the parties upon which the contract is made, and which materially affects the agreed performance of the parties.

-Despite the significance of the mistake made by the parties, Court of Appeals is reversed, because equity does not justify the remedy sought by appellees

-The fundamental nature of the contract was mistaken. Thus, the parties mistake as to a basic assumption materially affects the agreed performance of the parties.

-Where there is a mutual mistake of two equally innocent parties, court has to determine which blameless party should assume the loss resulting from the misapprehension they shared.

-"as is" clause suggests that the appellees should bear the risk

Conclusion: There was a mutual misapprehension of fact, but the circumstances do not warrant rescission

Parties:

-Appellees: Carl and Nancy Pickles

-Appellants: William and Martha Messerly

History:

-1971: Appellants acquired the land (one acre + 600 square feet).

-Appellants predecessor in title had installed a septic tank on the property without a permit and in violation of the applicable health code

-Was used as an income investment property

-1973: Appellants sold property to James Barnes, who also used it as an income-producing investment

-1976: Mr. & Mrs. Barnes sell the 1 acre, default on the land contract, 600 square foot property was then offered for sale

-Pickles' expressed interest in the property, but were dissatisfied with the Barnes-Messerly contract.

-Thus, Mr & Mrs. Barnes executed a quit claim deed which conveyed the interest in the property back to the Messerlys

-Mar 1977: Appellees purchased a 600-square-foot tract of land (with 3-unit apartment building) from appellants.

-Shortly thereafter, the Lenawee County Board of health condemned the property and obtained a permanent injunction which prohibits human habitation on the premises until the defective sewage system is brought into conformance with Lenawee County sanitation code

-Property was sold for $25,500, clause in the contract stated that the purchaser has examined the property and is willing to accept it in its present condition

-5-6 days later, upon inspection of the property, the Pickles' discovered raw sewage seeping out of the ground

-Lenawee County  Board of Health subsequently condemned the property and initiated this lawsuit against the Messerlys and land contract vendors, and the Pickles' as vendees

-Injunction was granted, and Lenawee was permitted to withdraw from lawsuit as stipulated

-No payments were made on land contract, and appellants filed a cross-complaint against the Pickles' seeking foreclosure, sale of the property, and a deficiency judgment

-Appellees counterclaimed for rescission against appellants and filed a third party complaint against the Barnes'

-Count 1:

-Appelles alleged failure of consideration

Count 2:

-Charged Barnes' with willful concealment and misrepresentation as a result of their failure to disclose the condition of the sanitation system

Trial: (Bench)

-Held: Appellees had no cause of action against either party

-Predicated upon the conclusion that none of the parties knew of Mr. Bloom's earlier transgression, or of the resultant problem with the septic system until it was discovered by the pickles'

-Found that the property was purchased "as is"

Appeal:

-Affirmed the ruling with respect to the Barnes, but reversed the finding against appellants

Torts! Duty: A "Killer" Patient

Tarasoff v. Regents of the University of California:

Supreme Court of California

17 Cal.3d 425 (1976)

Issue: Whether, when a therapist knows or has reason to know that the patient would harm others, the therapist has a duty to warn.

Rule: General Principle: "Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.

-When the avoidance of the foreseeable harm requires the defendant to control the conduct of another, a special relationship must exist (to the dangerous person or the victim)

-Common Law: One person owed no duty to control the conduct of another, nor to warn those endangered by such conduct. An exception has been carved out where the defendant has a special relationship

Application: This court departs from the balancing of a number of considerations (listed pg. 158, top), to just foreseeability

-The relationship between therapist and patient satisfies the 'special relationship' requirement.

-Plaintiff's pleadings assert no special relationship between defendant and Tatiana, but they do establish between Poddar and defendant

-California decisions that recognize this duty have involved cases in which the defendant stood in a special relationship with both victim and injurer

-Other jurisdictions hold that a single relationship is sufficient. Thus, the court adopts this view.

-Defendants contend that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence

-APA, in support of this (amicus), cites articles stating that it is not reliable, and therapists are more often wrong than right in predicting such.

-Within the broad ranger of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability

-Proof aided by hindsight, is insufficient

-In this case, the pleadings do not raise any questions as to the failure of defendant to predict that Poddar presented a serious danger of violence. Defendant predicted that he would kill.

-Amicus (apa?) contends that even when a therapist determines that the patient poses a serious danger of violence to others, the therapist should be free of any liability

-If a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim

-Professional inaccuracy in predicting violence cannot negate the therapist's duty to protect the threatened victim

-The risk of unnecessary warnings is an acceptable price to pay for the lives of possible victims.

-Defendant argues that warning victims is a breach of trust between the patient

-The public interest in safety from violent assault outweighs such considerations

-Evidence Code Section 1024: Legislature created a specific and limited exception to the psychotherapist-patient privilege:

-If he/she has reasonable cause to believe the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another, and that disclosure of the communication is necessary to prevent the threatened danger

-Therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others. Must do so discreetly

Conclusion: Plaintiffs can amend the complaint

Parties:

-Plaintiffs: Parents of Tatiana Tarasoff, who was killed by Poddar, patient of Dr. Moore

-Defendant: University of CA, Dr. Moore?

History:

-Dr. Moore, a psychologist employed with the University of California, was treating Poddar

-Plaintiffs allege that Poddar told Dr. Moore of his intention to kill Tarasoff

-At Dr. Moore's request, Poddar was then briefly confined by campus police

-Was released because he appeared rationale

-After Poddar's release, chief of psychiatry, Moore's superior, ordered that Poddar not be further detained

Trial Court:

-Judge dismissed the suit that was brought against several therapists and others

-Plaintiff seeks to amend complaint to allege that Tatiana's death proximately resulted from defendants' negligent failure to warn Tatiana or others likely to apprise her of her danger

-Contend that this amendment establish a cause of action

-Defendants contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents

-Rowland v. Christian: Whenever one person is by circumstances placed in such a position with regard to another… that if he did not use ordinary care and skill in his own conduct… he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.

Concurrence/Dissent:

-Concur in the result, only because the complaint alleges that defendant did in fact predict that Poddar would kill

-Dissent because Majority's rule holds that a therapist may be held liable for failing to predict his patient's tendency to violence if other practitioners, pursuant to the "standards of the profession" would have done so.

P.S. Memo turned out well, now I just have to wait a month for it to be graded :(

Thanks for the support!

New Post Monday!

Won't have much time to post this weekend, as I'm finishing up a memo for my legal writing paper. Hope all is well with everyone!

Therapist/Patient Duty to Warn in California!

Tarasoff v. Regents of the University of California:

Supreme Court of California

17 Cal.3d 425 (1976)

Issue: Whether, when a therapist knows or has reason to know that the patient would harm others, the therapist has a duty to warn.

Rule: General Principle: "Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.

-When the avoidance of the foreseeable harm requires the defendant to control the conduct of another, a special relationship must exist (to the dangerous person or the victim)

-Common Law: One person owed no duty to control the conduct of another, nor to warn those endangered by such conduct. An exception has been carved out where the defendant has a special relationship

Application: This court departs from the balancing of a number of considerations (listed pg. 158, top), to just foreseeability

-The relationship between therapist and patient satisfies the 'special relationship' requirement.

-Plaintiff's pleadings assert no special relationship between defendant and Tatiana, but they do establish between Poddar and defendant

-California decisions that recognize this duty have involved cases in which the defendant stood in a special relationship with both victim and injurer

-Other jurisdictions hold that a single relationship is sufficient. Thus, the court adopts this view.

-Defendants contend that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence

-APA, in support of this (amicus), cites articles stating that it is not reliable, and therapists are more often wrong than right in predicting such.

-Within the broad ranger of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability

-Proof aided by hindsight, is insufficient

-In this case, the pleadings do not raise any questions as to the failure of defendant to predict that Poddar presented a serious danger of violence. Defendant predicted that he would kill.

-Amicus (apa?) contends that even when a therapist determines that the patient poses a serious danger of violence to others, the therapist should be free of any liability

-If a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim

-Professional inaccuracy in predicting violence cannot negate the therapist's duty to protect the threatened victim

-The risk of unnecessary warnings is an acceptable price to pay for the lives of possible victims.

-Defendant argues that warning victims is a breach of trust between the patient

-The public interest in safety from violent assault outweighs such considerations

-Evidence Code Section 1024: Legislature created a specific and limited exception to the psychotherapist-patient privilege:

-If he/she has reasonable cause to believe the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another, and that disclosure of the communication is necessary to prevent the threatened danger

-Therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others. Must do so discreetly

Conclusion: Plaintiffs can amend the complaint

Parties:

-Plaintiffs: Parents of Tatiana Tarasoff, who was killed by Poddar, patient of Dr. Moore

-Defendant: University of CA, Dr. Moore?

History:

-Dr. Moore, a psychologist employed with the University of California, was treating Poddar

-Plaintiffs allege that Poddar told Dr. Moore of his intention to kill Tarasoff

-At Dr. Moore's request, Poddar was then briefly confined by campus police

-Was released because he appeared rationale

-After Poddar's release, chief of psychiatry, Moore's superior, ordered that Poddar not be further detained

Trial Court:

-Judge dismissed the suit that was brought against several therapists and others

-Plaintiff seeks to amend complaint to allege that Tatiana's death proximately resulted from defendants' negligent failure to warn Tatiana or others likely to apprise her of her danger

-Contend that this amendment establish a cause of action

-Defendants contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents

-Rowland v. Christian: Whenever one person is by circumstances placed in such a position with regard to another… that if he did not use ordinary care and skill in his own conduct… he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.

Concurrence/Dissent:

-Concur in the result, only because the complaint alleges that defendant did in fact predict that Poddar would kill

-Dissent because Majority's rule holds that a therapist may be held liable for failing to predict his patient's tendency to violence if other practitioners, pursuant to the "standards of the profession" would have done so.