NEW IDEAS
This page was last updated on 04/13/03
1. Related to issues of vicarious liability, Sec. 1:30 et seqq.
Assume: Corporation C enters into a partnership with plaintiff, P. C is controlled entirely by the defendant's President, Mr. D.
Clearly, C owes fiduciary duty towards P. But a question arises, does D? -- It will be said that D owes fiduciary duty towards C, but does that mean that he may not also owe it towards P? Where the two duties conflict, perhaps he will be privileged to breach his duty towards P and honor his duty towards C. But otherwise, does he not owe a direct duty?
2. General point: Should fiduciary duties be thought of as one-way streets? [See page LIV] Is there not a difference between the duty owed by the trustee of a trust whose beneficiary is a nine-year-old child, and the duty owed by one partner to another who is an adult? The child is utterly passive, whereas the partner may be an active participant in the affairs of the trust. Are the fiduciary duties the same in both cases?
A client who retains a lawyer to handle a complicated matter on a contingency basis, and then "wimps out" near trial, or refuses to discharge his discovery obligations, is certainly breaching some kind of obligation. Is it not a fiduciary obligation? It can feel like a betrayal to the lawyer - but current law seems to assume that the fiduciary duty runs from the lawyer to the client, and not in the other direction. The closest a present-day analysis might come to finding a breach of duty towards the lawyer is this: the client who fails to discharge his obligations as a litigant is breaching a duty owed to the court, and his attorney is an officer of the court.
3. Informed Consent: The topic needs to be expanded. [See Sec. 2:11, and references to informed consent throughout the book]. There is a word-field [see Glossary in the book] of which "informed consent" is just one element. We now need to bear in mind and distinguish "implied consent", "presumed consent", and "community consent". These last two ideas are coming up now in bioethics discussions: consent is "presumed" when a patient, or the subject of an experiment, fails to opt out of a data collection program although given an opportunity to do so. This is a little more specific than the consent which may be merely "implied" from silence or a general failure to act or object. "Community consent" arises when a community votes to allow a program of data-collection which might otherwise require the informed consent of each member of the community. So, for instance, in December of 1998, Iceland's parliament decided to give a 12-year license to DeCODE Genetics to develop and exploit a medical records databank of its citizens. Because of the genetic homogeneity of this particular population (living on an island, believed to carry the same genetic material as the Viking explorers who settled there over 1100 years ago) genetic anomalies can be more easily identified in studies of the origins of diseases. This might lead to faster development of "designer drugs" targeted at the particular diseases in question. See "The Icelandic Healthcare Database and Informed Consent" in The New England Journal of Medicine, June 15, 2000, Vol. 342, No. 24.
4. Remedies: The topic needs to be expanded. [See Chapter Five, and particularly Section B, relating to Damages at Law].
Three brand new cases traverse certain fundamental aspects of the law:--
Proximate cause: In Saelzler v. Advanced Group 400, et al. (June 14, 2001) -- Cal.4th ---, the Supreme Court held that a defendant apartment owner was entitled to summary judgment against a plaintiff suing on a premises liability theory. The plaintiff had been assaulted on the premises, but the assault was perpetrated by three unknown men. The plaintiff wanted to go to trial on the theory that the landlord could have and should have taken stronger security precautions, and she offered expert testimony to buttress her position. But the Supreme Court agreed with the trial court that the plaintiff had not shown that there was any chain of proximate cause leading from the action or inaction of the defendant, to her injuries. Plaintiff's evidence was all speculative: if the landlord had done more, things might have been better -- yes, but the assault might still have occurred. The Court, on a 4-3 majority, held that such speculative evidence was not enough to allow the plaintiff to go to trial.
Foreseeability:. In Hassoon v. Shamieh, 2001 DJAR 5809 (CA 1st, Div. 4, May 10, 2001), a grocery store owner saw a group of men beating up a victim in front of the door to his store. He knew all the parties. He went outside and dragged the victim into the store, to what he thought would be a place of safety. One of the men outside drew a gun and started firing shots into the grocery store. One of the shots injured the plaintiff, a customer in the store. The customer sued the grocery store owner, but the trial court granted summary judgment in favor of the defendant, saying the shooting of the customer was not foreseeable - as a matter of law.
Duty: In Romero v. Superior Court of San Diego County (Ryan N., RPI) 2001 DJAR 5830 (CA4th, Div. 1, June 8, 2001) a teenage girl was assaulted by another teenager while visiting the defendants' home. The assault occurred while the defendants were not present: they had gone to purchase pizzas for the teenagers who were having a party at their home. Even though the victim's mother had told the defendants earlier that she never allowed her daughter to go anywhere without adult supervision, and even though the defendants had responded that they had no plans for the afternoon other than to garden in their back yard, the court found that the defendantsw had not undertaken any duty towards the plaintiff to supervise her personally throughout the day. Summary judgment, which the trial court had denied, had to be granted.
These cases explore the relationships among duty, foreseeability, and proximate cause, and these relationships are important in all areas of civil law - fiduciary duties included. For instance, even in cases where a fiduciary has a conflict of interest and the plaintiff, his cestui, suffers economic injury in the transaction in which the fiduciary participated, the fiduciary may not be liable: only if his conflict caused the injury will damages at law be recoverable.