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Legal Memorandum: Special Relationship and Duty to Protect

Issue: Under the law of Vermont and the Restatement view, when will liability be imposed on an employer for actions of an employee where caring for a third party who has been committed to the defendant’s care?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Special relationship; Duty of reasonable care
Jurisdiction: Vermont
Cited Cases: None
Cited Statutes: Restatement (Second) of Torts §§ 314A, 320; Restatement (Third) of Torts § 40
Date: 12/01/2009

Courts recognize a type of direct liability claim for the defendant’s negligent failure to protect a third person when the third person, to a greater or lesser extent, is committed to the defendant’s care.  See Restatement (Second) of Torts §§ 314A, 320.  Section 314A provides:

(1)        A common carrier is under a duty to its passengers to take reasonable action

 

(a)        to protect them against unreasonable risk of physical harm, and

(b)        to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

 

(2)        An innkeeper is under a similar duty to his guests.

 

(3)        A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

 

(4)        One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Restatement (Second) of Torts § 314A.  Reading the applicable subsections (1) and (4) together, the Restatement rule is that one who voluntarily takes the custody of another under circumstances such as to deprive the other of his or her normal opportunities for protection is under […]

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