Hall v. United States

266 F. App'x 604

Opinion

MEMORANDUM

Footnotes

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Appellants Hall et al. appeal dismissal of their Second Amended Complaint with prejudice, denial of their motion for leave to amend, and denial of their motion to alter or amend the judgment. Because their complaint, even liberally construed, fails to state a cause of action under Nevada law, we affirm.

Even assuming a special relationship existed between the government and Perry, no Nevada court has ever recognized a duty to control or warn where there is no physical harm. See Mangeris v. Gordon, 94 Nev. 400, 580 P.2d 481, 483 (1978) (citing Tarasoff v. Regents of University of California, 17 Cal.3d 425,131 Cal.Rptr. 14, 551 P.2d 334 (Cal.1976), for the proposition that a duty to warn against “dangerous conduct” may exist where “the defendant bears some special relationship to the dangerous person or to the potential victim”).

The Restatement (Second) of Torts, which Mangeris and Tarasoff rely upon, specifically limits duties arising from special relationships to protection against physical harm. Restatement (Second) of Torts § 314A (1965) (certain special relationships give rise to a duty to protect “against unreasonable risk of physical harm”); id. § 315 (absent a special relationship there is no duty “to control the conduct of a third person as to prevent him from causing physical harm”); id. § 319 (duty to exercise reasonable care to control third person arises where a person “takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled”) (emphases added).

Because no amendment to the complaint would allege physical harm, the district court did not err in dismissing the complaint with prejudice. The district court’s dismissal is AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.