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Daniels v. Carpenter1/28/2003
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
[ ] One example of a case wherein a duty was based upon these Restatement principles is Gritzner v. Michael R., 228 Wis.2d 541, 598 N.W.2d 282 (1999). In Gritzner, a minor was sexually molested by another minor while playing at the latter's home. The Wisconsin Court of Appeals found "it self-evident that an adult who voluntarily takes on the supervision, custody or control, even on a temporary basis, of a visiting child . . ., stands in a special relationship to such child for purposes of the child's 'protection' under § 314A of the Restatement." Gritzner, 598 N.W.2d at 287-88. In reversing the dismissal of the victim's negligence action against the parent of the perpetrator, the court also found that a duty of protection existed under Restatement (Second) of Torts, supra, § 324A. Gritzner, 598 N.W.2d at 289. It is noteworthy that the potential liability of the homeowner in Gritzner did not arise from the concept of premises liability, but from the special relationship. Id. at 288. *fn5
[ ] Under different facts, a similar result was reached in Morgan v. Perlowski, 508 N.W.2d 724 (Iowa 1993). While attending a "beer party" at Perlowski's mother's house, Morgan was assaulted by another guest. Id. at 725-26. In Morgan's negligence action against Perlowski, a question arose as to the proper source of any duty Perlowski owed Morgan. Rejecting a premises liability theory, the Iowa Supreme Court held that the duty arose out of the special relationship concepts of Restatement (Second) of Torts, supra, §§ 315 and 318. Morgan, 508 N.W.2d at 726-28. In adopting the principles of Restatement (Second) of Torts, supra, § 318, the court held that "[a]s a matter of public policy, it is reasonable to impose a limited duty upon a possessor of land, who is present on the land, to control the conduct of social guests." Morgan, 508 N.W.2d at 728. The court then concluded that it was a jury question whether Perlowski knew or should have known he had the ability to control the assaulting guest and whether he knew or should have known of the necessity and opportunity to exercise such control. Id. *fn6 See also Chavez v. Torres, 128 N.M. 171, 991 P.2d 1, 5-6 (1999). For a duty to arise under Restatement (Second) of Torts, supra, § 318, harm must have been reasonably foreseeable by the homeowner. Anthony H. v. John G., 415 Mass. 196, 612 N.E.2d 663, 666 (1993).
[ ] As an alternative theory of liability, the appellant also contends that the appellees stood in loco parentis and had assumed the parental duty to control the teenagers who were staying overnight on their property. *fn7 Without citation to any particular authority, the appellant simply argues that this theory supports a finding that the appellees had a duty to the minors.
[ ] This Court, and the Wyoming State Legislature, have both previously dealt with the tort of social host or vendor liability for harm caused by an intoxicated person. *fn8 In Parsons v. Jow, 480 P.2d 396, 397 (Wyo. 1971), this Court stated that there was no common law cause of action against a liquor vendor in favor of one injured by an intoxicated vendee because proximate cause was deemed to be the vendee's consumption, not the vendor's sale. We also said that any change in that rule was up to the legislature. Id. at 398. Twelve years later, in McClellan, 666 P.2d at 410-12, we reversed ourselves and acknowledged a cause of action based on common law negligence. *fn9 We further held that statu
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