 | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(December 2010) |
A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so.
In the United States, two landmark legal cases established therapists' legal obligations to breach confidentiality if they believe a client poses a risk to himself or others. The first was Tarasoff v. Regents of the University of California (1976), where a therapist failed to inform a young woman and her parents of specific death threats made by a client. The other case was Jablonski by Pahls v. United States (1983), which further extended the responsibilities of duty to warn by including the review of previous records that might include a history of violent behavior.
 | This section needs additional citations for verification .(October 2016) |
The duty to warn arises in product liability cases, as manufacturers can be held liable for injuries caused by their products if the product causes an injury to a consumer and the manufacturer fails to supply adequate warnings about the risks of using the product (such as side effects from pharmacy prescriptions) or if they fail to supply adequate instructions for the proper use of the product (such as a precaution to use safety glasses when using a drill). [1] If the manufacturer fails to supply these warnings, the law will consider the product itself to be defective.
A lawsuit by a party injured by a product, where the manufacturer failed to properly warn, is usually brought as a "negligence" action, but it could be filed as a "strict liability" claim or as a "breach of warranty of merchantability" case. [2]
Not long after launching its Note 7 smartphone in August 2016, Samsung got many reports of burning phones. Samsung had no choice other than recalling all the Galaxy Note 7, which had cost the company around $5.3bn. [3] Following the recall, the Federal Aviation Administration prohibited people from turning Galaxy Note 7 on, packing it in the checked luggage, and charging it while on the plane. [4] On October 11, 2016 Samsung stopped the production and issued a warning for people to turn the Galaxy Note 7 off and to not use it any longer. Samsung also told all of its global partners to stop selling the phone because of concerns about the product's safety. [5] After testing 200,000 devices and 30,000 batteries, Samsung found that the overheating and the burning phones was resulted from the error in designing and manufacturing the batteries of its two suppliers. [6]
An issue in product liability cases is whether the product warranted a duty to warn about known dangers. [7]
In the popularized 1994 Liebeck v. McDonald's Restaurants case where the individual Liebeck sued McDonald's for damages for injuries due to spilling hot coffee on her lap. McDonald's was cited not to have properly warned consumers about the inherent danger of their coffee product, which was heated way beyond the average chain coffee's temperature . [8] In addition, McDonald's was aware of previous injuries from hot coffee injuries and had not properly warned the consumers, which resulted in the court awarding Liebeck $640,000 in damages, which was later settled for an undisclosed amount. [9]
Most notably, a property owner has a duty to warn persons on the property of various hazards, depending on the status of the person on the property. For example, the property owner must warn an anticipated or discovered trespasser of deadly conditions known to the property owner, but that would be hidden from the trespasser. The property owner must warn licensees of all known hazards (whether deadly or not), and must warn invitees of all dangers that the property owner can discover through a reasonable inspection of the property. [10] [11]
In clinical psychological practice in the United States, duty to warn requires a clinician who has reasonable grounds to believe that a client may be in imminent danger of harming themselves or others to warn the possible victims. [12] Duty to warn is among the few exceptions to a client's right to confidentiality and the therapist's ethical obligation to maintain confidential information related in the context of the therapeutic relationship. In the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, the therapist's duty to warn is implicitly contained within the guidelines for disclosure of confidential information without the consent of the client: "Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to … protect the client/patient, psychologist, or others from harm." [13] In situations when there is cause for serious concern about a client harming someone, the clinician must breach confidentiality to warn the identified victim/third party about imminent danger. [14] [ page needed ] Although laws vary somewhat in different states, in general, the danger must be imminent and the breach of confidentiality should be made to someone who is in a position to reduce the risk of the danger. [12] People who would be appropriate recipients of such information would include the intended victim and law enforcement.
Duty to warn is embedded in the historical context of two rulings (1974 and 1976) of the California Supreme Court in the case of Tarasoff v. Regents of the University of California . [15] [ page needed ] [16] The court held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim.
Explicit in the court's decision was the principle that the confidentiality of the therapeutic relationship is subordinate to the safety of society and its members. [16] Despite the value and importance of protecting the client and their feelings, and thus the physician-client relationship, the court decided that the clinician's duty to society as a citizen of that society places certain limitations on the clinician's loyalty to a client's secrets, divulged in the context of the therapeutic relationship.
Limitations to confidentiality are a critical concern for clinicians, because a relationship of trust between the therapist and client is the prerequisite context for therapeutic growth. [16] Without the client's expectation that the therapist will honor the client's confidences divulged in the therapeutic dialogue, the client will not have the freedom to unveil the most troublesome and private issues that are matters of the utmost concern and need for intervention. Some argue that if clients cannot depend on confidentiality in all matters that are related in therapy, potentially dangerous clients, who may be most in need of psychological services, will avoid therapy, thus missing the opportunity for intervention. [12]
Other cases similar to the issues addressed in the Tarasoff case have been brought to the attention of the courts, such as the Jablonski by Pahls v. United States . The conclusion of that case extended the responsibility entailed in the duty to warn with the judgment that the clinician may be liable for failure to review previous records, which may contain a history of previous violent behavior, a predictor of potential future violence.
Recent[ when? ] consideration of applying the duty to warn has raised questions regarding therapists' responsibility to breach confidentiality in order to report clients' nonviolent behaviors which may pose danger to others, as in the case of clients with HIV/AIDS. [12]
The existence and extent of a contractual duty to warn in construction cases is discussed in the England and Wales High Court (Technology and Construction Court) case of Cleightonhills v Bembridge Marine Ltd and Others (2012). [17]
In Jane Doe No. 14 v. Internet Brands, Inc. , the Jane Doe plaintiff alleged that Internet Brands, Inc.'s failure to warn users of its networking website, modelmayhem.com, caused her to be a victim of a rape scheme. She alleged that defendant Internet Brands knew about the rapists but did not warn her or the website's other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. On May 31, 2016, the US Court of Appeals for the 9th Circuit ruled that the Communications Decency Act does not bar Jane Doe's failure to warn claim. [18]
In the early morning hours of August 24, 1986, a woman who lived in a second-floor apartment in Toronto was raped at knifepoint by Paul Callow, who had broken into her apartment from a balcony. At the time, the plaintiff was the fifth victim of similar crimes by Callow, who would become known as the "balcony rapist". In 1998, this woman was successful in her lawsuit against the Metropolitan Toronto Police Force for damages on the grounds that the police force had conducted a negligent investigation and failed to warn women of the risk of an attack by Callow. [19]
In December 2012, a woman, who later became a Jane Doe plaintiff, was attacked by Sofyan Boalag in St. John's, Newfoundland. This assault was the last of six assaults between September and December 2012. Boalag was charged with 23 criminal offences in relation to complaints from multiple victims. In 2016, he was convicted of multiple offenses including robbery, three counts of sexual assault with a weapon, and choking Doe until she passed out.
In January 2016, Doe commenced a lawsuit against the Royal Newfoundland Constabulary, alleging police failed to properly warn the public that a predator was stalking young women. According to the statement of claim, all of the attacks took place in a similar part of the city and involved people with similar characteristics—six young women, including one girl under 16 years of age. [20] [21]
In 1986, 19-year-old Jeanne Clery was raped and murdered in her Lehigh University dorm room. Her parents noted:
Because her parents' efforts, the Clery Act was enacted which requires colleges and universities in the United States to publish campus crime reports. [23]
In 2008, Eastern Michigan University was fined $357,500 for violating the Clery Act. [24] [25] US federal officials cited the university for "an egregious violation" for failing to notify the public of the murder of Laura Dickinson in her residence hall room. [26]
In July 2015, then–Director of National Intelligence James Clapper formally issued a directive to the agencies of the United States Intelligence Community that they had a "duty to warn" both U.S. and non-U.S. persons of impending harm against them. The directive included exemptions for occasions that required the protection of sensitive "sources and methods," cases where the intended victim was a member of a terrorist group or a violent criminal, or if the intended victim was already aware of the threat. Many U.S. intelligence agencies had informally observed such a practice for decades before Clapper's directive. [27]
In 2019, the Committee to Protect Journalists sued the Trump administration for information on whether the U.S. government had followed its "duty to warn" principle in the case of the murdered Saudi-American journalist Jamal Khashoggi. [28] In August 2021, a U.S. appeals court ruled that U.S. intelligence agencies were not required to disclose whether they had information about threats to Khashoggi's life before his assassination. [29]
Before the January 3, 2024, Kerman bombings, a terrorist attack carried out by ISIS-K suicide bombers that killed 94 people and injured 284 others, the U.S. intelligence community provided Iran, often considered an adversary of the U.S., with an early warning under its "duty to warn" policy. U.S. officials noted that the information given was sufficiently specific regarding the location and timely enough that it may have proved useful to Tehran in thwarting the attack. [30]
In March 2024, the United States privately warned Russian officials of the danger of an impending attack from Islamic State – Khorasan Province (IS-KP or ISIS–K), from intelligence gathered earlier in March, under the US intelligence community's "duty to warn" requirement. [31] Later that month the group would carry out the Crocus City Hall attack which killed 139 people. [32]
Negligence per se is a doctrine in US law whereby an act is considered negligent because it violates a statute. The doctrine is effectively a form of strict liability.
Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some of the punitive damages in award.
Liebeck v. McDonald's Restaurants, also known as the McDonald's coffee case and the hot coffee lawsuit, was a highly publicized 1994 product liability lawsuit in the United States against the McDonald's restaurant chain.
Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information.
In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14, was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim. The professional may discharge the duty in several ways, including notifying police, warning the intended victim, and/or taking other reasonable steps to protect the threatened individual.
Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.
In English tort law, an individual may owe a duty of care to another, in order to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability will be imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.
In medical law and medical ethics, the duty to protect is the responsibility of a mental health professional to protect patients and others from foreseeable harm. If a client makes statements that suggest suicidal or homicidal ideation, the clinician has the responsibility to take steps to warn potential victims, and if necessary, initiate involuntary commitment. The majority of people have, at some stage, had thoughts about killing someone, but the seriousness or intention of carrying out these thoughts may differ among persons and individual circumstances.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Jablonski by Pahls v. United States, 712 F.2d 391 is a landmark case in which the 9th Circuit Court of Appeals determined that a mental health professional's duty to predict dangerousness includes consulting a patient's prior records, and that their duty to protect includes the involuntary commitment of a dangerous individual; simply warning the foreseeable victim is insufficient.
Ewing v. Goldstein15 Cal. Rptr. 3d 864 is a landmark court case that extended California mental health professional's duty to protect identifiable victims of potentially violent persons, as established by Tarasoff v. Regents of the University of California, to include acting upon communications from third parties that indicate a possible threat.
The Buried Bodies Case, also known as the Lake Pleasant Bodies Case, is a mid-1970s upstate New York court case where defense attorneys Frank H. Armani and Francis Belge kept secret the location of the bodies of two women murdered by their client, Robert Garrow, Sr.
Jane Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894 (2014), is a ruling at the Ninth Circuit Court of Appeals on the legal liability of an Internet service provider for criminal offenses committed by its users. The ultimate ruling in the case has caused confusion over the amount of liability faced by service providers during such incidents.
Ethical guidelines for treating trauma survivors can provide professionals direction to enhance their efforts. Trauma survivors have unique needs and vary in their resilience, post-traumatic growth, and negative and positive outcomes from their experiences. Numerous ethical guidelines can inform a trauma-informed care (TIC) approach.
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