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Bailey v. Huggins Diagnostic & Rehabilitation Center Inc.6/26/1997
cting in reasonable reliance upon such information, takes action that results in that other person's physical harm. Restatement (Second) of Torts § 311 (1993). It is a tort based on negligence, not fraud. See Ebrahimi v. E.F. Hutton & Co., 794 P.2d 1015 (Colo. App. 1989).
To recover on a claim based on negligence, it must be shown that the defendant owed a duty of due care to plaintiff, which duty was breached, causing plaintiff damage. Leake v. Cain, 720 P.2d 152 (Colo. 1986). If the law imposes no duty of due care under the circumstances, no claim based on negligence can be sustained, even though injury may have occurred. University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987).
Whether the circumstances of the case give rise to a duty of due care is a question of law for resolution by the court. Perreira v. State, 768 P.2d 1198 (Colo. 1989). And, if it is determined that a duty exists, the court must also consider the scope of the duty and define the applicable standard of care against which to measure the defendant's conduct. Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo. 1993).
In determining these questions, the court should consider whether harm is a reasonably foreseeable result of the act or omission under consideration. Whether harm is reasonably foreseeable depends upon common sense perceptions of the risks created by the conditions and circumstances and "'includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.'" Taco Bell, Inc. v. Lannon, 744 P.2d 43, 48 (Colo. 1987).
Mere foreseeability of harm, however, does not alone give rise to a duty of care. In addition to the element of foreseeability, the court must consider a number of other factors, including: the social utility of the defendant's activity; the magnitude of the burden of guarding against the harm; the consequences of placing that burden on the defendant; and all other factors that would be relevant in weighing the competing individual and social interests implicated by the specific circumstances. Perreira v. State, supra. Whether a legal duty of due care should be recognized, therefore, is essentially a question of fairness under contemporary standards, i.e., whether reasonable persons would recognize a duty and agree that it exists. See Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992).
A consideration of the relevant factors in light of the evidentiary circumstances here leads us to conclude that Huggins owed no duty of due care to plaintiff.
First, we entertain serious doubt whether it was reasonably foreseeable that harm would result to a reader of Huggins' book or to a viewer of the television programs. As noted, these materials clearly acknowledged that a majority of the dental profession did not share Huggins' concern over the health risks of amalgams. Given this disclosure, it is questionable whether one could reasonably rely upon Huggins' views without obtaining additional professional advice of a treating dentist, as plaintiff did here. And, if the recommendation of that treating dentist was to have the amalgam removed, the legitimate argument could be made that it was that later specific recommendation, and not any earlier statement made by Huggins, that caused any resulting harm.
Nevertheless, even if it be assumed that some harm might have been foreseeable, we conclude that the social utility of encouraging authors to address issues of public concern, and the magnitude of the burden that would be imposed upon them if a duty of care were recognized, far outweigh the private interest of any individu
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