Hi Rick,

I am not sure if this is in the same ballpark, but there is the concept of contributory liability and vicarious liability...and at the moment I am thinking about how they are applied in intellectual property situations, especially with copyright and trademark infringement.  The basic notions are that specific knowledge of an infringement plus an ability to stop the it brings a duty to act.  Or a general knowledge plus financial benefits provides a duty to police for specific acts of infringement.  These doctrine are most evident when considering liability of online service providers for copyright infringements by customers.  The Napster case perhaps is the best example where both responsibilities existed.  There are numerous others.

Lee

Lee Burgunder
Orfalea College of Business
Cal Poly

----- Original Message -----
From: "Rick Kunkel" <[log in to unmask]>
To: [log in to unmask]
Sent: Sunday, March 13, 2011 9:26:37 AM
Subject: Knowledge giving rise to Duty

Dear ALSB Friends,

I am working on a paper in which one of the questions presented is whether a
person's knowledge of some harmful, improper or illegal conduct can give
rise to a duty to protect against the illegal conduct, even where no
previous duty existed.

Some examples might be in premises liability cases, where a landowner in
general has no duty to protect against third party criminal acts that occur
on her property.  But after several criminal incidents on the property,  and
knowledge of the acts, courts have held that a duty will arise. (e.g.
customers of banks being robbed at open bank ATMs on premises, assault in
shopping center parking lots).  Maybe another example is the  idea of
attractive nuisance, where a party may in general have no duty to
trespassers, but at some point injury to the trespasser might give rise to
this duty.

If you are aware of other such instances, or can point me to resources that
help to explain the relationship between knowledge and duty, I would
appreciate your insights.  For example, how much knowledge is necessary to
cause duty to arise?  Is knowledge of a possibility of harmful activity?  A
probability?  Foreseeability? Substantial certainty?

Any assistance you can provide will be deeply appreciated.  You can reply
privately to me at [log in to unmask] if you prefer not to reply to the
full listserve.

Thanks

Rick Kunkel