January 2014 - Parks & Recreation - 28

L AW R E V I E W

The degree of certainty that the
plaintiff suffered injury; the closeness of the connection between the
defendant's conduct and the injury
suffered; the moral blame attached
to the defendant's conduct; the policy
of preventing future harm; the extent of the burden to the defendant;
consequences to the community of
imposing a duty to exercise care with
resulting liability for breach; and the
availability, cost and prevalence of
insurance for the risk involved.

conduct of another or to warn those
who may be endangered by such conduct. " On the other hand, the appeals
court found liability for nonfeasance
may arise in limited situations " when
there is a special relationship between the defendant and the plaintiff
that creates a duty to act. "
Special Relationship
As described by the court, a " special relationship may arise out of a
statutory or contractual duty. " In

In particular, the court noted that " generally
no one has the duty to control the conduct of
another or to warn those who may be endangered
by such conduct. "
Moreover, in determining duty " in
the context of third-party acts, " the
appeals court noted that courts generally distinguish between " misfeasance " and " nonfeasance " :
Misfeasance arises from affirmative misconduct by the defendant, i.e.
when the defendant's conduct makes
the plaintiff 's position worse or creates a risk for the plaintiff. Nonfeasance exists when the defendant fails
to take action that would have benefited the plaintiff.
The appeals court characterized
this particular situation as a " nonfeasance case " because Perez and the
City allegedly " failed to do certain
things, namely they failed to provide
adequate security at the park and
warn plaintiff of the dangers there. "
As a " general rule, " the court acknowledged " nonfeasance does not
give rise to a legal duty. " In particular, the court noted that " generally
no one has the duty to control the

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addition, under the traditional common law, the court found a " special
relationship " may exist " in light of
the particular nature of the relationship between the parties, " including
" common carriers and passengers,
innkeepers and guests, and psychotherapists and patients. " Munoz
claimed he had a special relationship
with Perez and the City. The appeals
court rejected this argument:
Although the complaint vaguely
states Perez was a " staff person " at
Calas Park " in charge of the Samoan team, " it does not state facts indicating he was responsible for security
at the park or anywhere else, or that
he was present on day of the attack.
The complaint also does not allege
that Perez ever communicated with
plaintiff or had any dealings with
him in any capacity. In short, there
are simply no facts indicating plaintiff had a special relationship, or a
relationship of any kind, with Perez.

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As characterized by the court, the
" sole basis for plaintiff 's claim that
he had a special relationship with
the City are the contents of its website. " Specifically, Munoz had argued
that " the website 'invited' the general
public, including plaintiff, to Calas
Park, and falsely represented that it
was 'safe' there. " The appeals court,
however, found this " characterization of the website is not accurate " :
The website " welcomes " readers
to the website; it does not invite them
to the City's parks. While the website
makes a general statement about providing " fun, safe, quality recreational
programs, " it does not include any
statements about the event plaintiff attended or softball games at Calas Park.
Assuming " the website included
an invitation to the general public to
attend the softball game plaintiff attended, " the court found " the City's
alleged invitation to the general public " would still " not create a special
relationship between the plaintiff
and the City. " In reaching this conclusion, the court also noted that Munoz " did not pay the City to attend
the softball game. "
Applying the above-cited factors
used by courts to determine the
scope and existence of a legal duty,
the court reached the same conclusion that the City had no legal
duty to Munoz to warn or protect
against the attack by third parties
because " the City did not have a
special relationship with Munoz in
this nonfeasance case. "
As noted by the court, in the case
of criminal conduct by a third party,
an " 'extraordinary high degree of
foreseeability is required to impose
a duty on the landowner, in part because it is difficult if not impossible
in today's society to predict when a
criminal might strike. " In this particu-

January 2014 - Parks & Recreation

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