§ 8.01  Overview [118-119]

 

The element of duty establishes that there is a legally recognized relationship between the defendant and the plaintiff that obligates the defendant to act (or to refrain from acting) in a certain manner toward the plaintiff.  Whether a duty exists is often a policy-based determination and, thus, it is left to a judge to make the determination of whether a duty exists.  The duty concept has been expanding to the point that now one engaged in risk-creating conduct generally owes a duty to avoid causing foreseeable personal injuries to foreseeable plaintiffs.

           

§ 8.02  Nonfeasance [119-140]

 

Typically, there is no duty owed in a nonfeasance context.  Nonfeasance is generally the failure to intervene to confer a benefit upon another.  Misfeasance often consists of affirmative acts of risk-creating conduct, doing something that a reasonable person would not do. Misfeasance can also be shown by a negligent omission - failing to do something that a reasonable person would have done. Either risk-creating affirmative acts or negligent omissions generally lead to the finding of a duty. A defendant who is sued based on his nonfeasance has not created the risks that ultimately injure the plaintiff; rather, the defendant has failed to prevent harm caused by some other source from occurring.

 

Typically, nonfeasance-based actions arise where the plaintiff contends that the defendant should have intervened to rescue the plaintiff, or where the claim is that the defendant should have prevented harm to the plaintiff by controlling a third party or by taking measures to protect the plaintiff from injury.  Courts will find a duty in these contexts only in limited situations.

 

            [A] Duty to Rescue

 

The clear general rule remains that a person does not have a duty to aid another. Courts consistently have refused to require a stranger to render assistance, even where the person could have rendered aid with little risk or effort.  There are a variety of reasons given for the law's no-duty-to-rescue rule (e.g., the value of individualism and the unworkability of a rule requiring rescue).  The no-duty-to-rescue rule, nonetheless, has been powerfully criticized as devaluing human life and celebrating selfishness. Discomfort with the rule has led courts to fashion various exceptions.

 

                        [1] Creating the Peril   

 

A well-established exception to the no-duty-to-rescue rule applies when the need for rescue arises because of the defendant's negligence.  Also, some jurisdictions have found an exception where a person's fault-free conduct gives rise to the need to rescue.  Indeed, there is movement toward imposing rescue obligations on those who are connected in any way to the need for rescue.

 

                        [2] Special Relationships

 

Courts have imposed a duty to rescue when justified by a “special relationship” between the parties such as a common carrier-passenger, innkeeper-guest and ship captain-seaman.  There seems to be a movement to find a duty to aid or protect in any relation of dependence or of mutual dependence.”

           

                        [3] Undertaking to Act and Reliance

 

While people generally have no obligation to intervene, once they do, a duty arises. There are different views about the extent of the obligation: under the traditional view, once a person undertakes to rescue, he must not leave the victim in a worse position; under the more modern view, the rescuer is obligated to act reasonably once he has begun to act.  Closely related to the undertaking to act concept is the concept of reliance. Courts have found a duty where the defendant caused the plaintiff to rely on promised aid.

 

                        [4] Contract

 

Occasionally, a rescue obligation arises from contract. There is debate about the extent to which a defendant's gratuitous promise, without more, gives rise to a duty. 

 

            [B] Duty to Control and Protect

 

A person typically is not legally obligated to control the conduct of another or to take steps to protect another from harm.

           

                        [1] Control

 

While generally a person has no obligation to control another person's conduct to prevent harm to a third person, exceptions arise where there is a special relationship. The relationships giving rise to a duty to control require some relationship between the defendant and the third party, combined with knowledge (actual or constructive) of the need for control. There can be substantial debate about which relationships give rise to a duty to control.

           

                                    [a] Tarasoff v. Regents of University of California

 

Probably the most famous duty-to-control case is Tarasoff v. Regents of University of California, [551 P.2d 334 (Cal. 1976)] in which the plaintiffs asserted that the defendant therapist had a duty to warn them or their daughter of threats made by the psychotherapist's patient. Jurisdictions have overwhelmingly adopted the Tarasoff rationale with differences about its application. In some jurisdictions, the duty to warn extends only to “readily identifiable victims,” while in others all foreseeable victims must be warned.

 

                                    [b] Suppliers of Liquor

 

At common law, neither sellers of liquor nor social hosts were liable to those injured by those to whom they served alcohol. Courts and legislatures have been reconsidering this common law view. Several have imposed liability on commercial suppliers of liquor. A few went further and determined that a social host could be liable to a third party injured by a drunken guest. These decisions are controversial and raise complex policy issues.

 

                                    [c] Negligent Entrustment

 

Negligent entrustment cases involve misfeasance by the defendant. The defendant's liability is premised on supplying a potentially dangerous instrumentality (such as a car or gun) to a person the defendant knows or should know is not fit to handle it.

 

            [2] Duty to Protect

 

As a general principle, there is no obligation to protect another from harm. Where, however, the defendant and plaintiff stand in a relationship in which the latter has ceded the ability for self-protection, the former has a duty to make reasonable efforts to protect the latter.

 

                                    [a] Landlord Duty to Protect

 

A landlord/tenant relationship may trigger a duty to protect, provided there is enough foreseeability of harm and it is supported by public policy.

 

                                    [b] Business Duty to Protect

 

Jurisdictions differ on how to treat cases of assault on patrons of a business.  The business-patron relationship is rarely enough to itself establish a duty. Courts typically require a high degree of foreseeability to establish a duty. How high is subject to some debate. Some courts require that the plaintiff show evidence of “prior, similar incidents” before a duty to protect can be found. Others look more broadly at the “totality of the circumstances,” while others balance the degree of foreseeability and the burden of protection. Ultimately, whether a duty to protect should be owed is a determination of public policy.

 

                                    [c] Police Duty to Protect and the Public Duty Doctrine

 

Special duty issues often arise when the plaintiff seeks to recover from a government entity. Under the “public duty doctrine,” a government actor performing improperly is not usually liable to individuals harmed by the misperformance, because any duty owed is limited to the public at large rather than to any specific individual.

 

                                                [i] Police Duty

 

Police departments are typically not liable for failing to protect individual citizens because of separation of power concerns by the courts. Most courts fear that if they recognize a duty of protection, they would inevitably be determining how the limited police resources of the community should be allocated. In order for there to be a duty to protect in a police case, then, the plaintiff must establish that the defendant police undertook to act and created reliance, enlisted the aid of the plaintiff, or increased the risk of harm to the plaintiff. Some courts have created additional narrow exceptions.

           

                                                [ii] The Public Duty Doctrine in Other Contexts

 

The public duty doctrine has been applied to limit duty in contexts other than that of the police, such as to fire departments. Some courts have gone so far as to refuse to find a duty owing from a government-run common carrier sued for its failure to protect passengers from third-party harm or to permit the questioning of a school district's decision about where to place school bus stops. The public duty doctrine has been much criticized as an attempt to resurrect governmental immunity in contexts where it ostensibly has been abolished. It has also been seen as unfairly placing the burden of loss on the few innocent victims of government error, and as creating a disincentive for government to use care in carrying out its functions.

 

§ 8.03   The Limits of the Misfeasance/Nonfeasance Distinction [140]

 

The misfeasance/nonfeasance distinction is not the “be all and end all” of duty analysis. Rather, there are cases where the classification of the conduct in issue is secondary to policy concerns. One example is the famous case of H.R. Moch Co., Inc.v. Rensselaer Water Co. [159 N.E. 896 (N.Y. 1928)], in which the plaintiff suffered property damage because the defendant water company, who had contracted with the city to supply water to the city's fire hydrants, failed to do so. The decision sought to limit the scope of the defendant's liability, possibly out of the recognition that water, as a necessity, must be kept affordable. Indeed, the Moch rationale has been followed in cases of obvious misfeasance where there are concerns about excessive liability.

 

§ 8.04  The Foreseeable Plaintiff Requirement [140-143]

 

Absent some other basis for limiting the scope of duty, the defendant owes a duty to foreseeable victims for foreseeable harm.  Thus, in order to establish a duty, the plaintiff must show that defendant's negligence created foreseeable risks of harm to persons in her position. The concept that the scope of duty is limited to a foreseeable plaintiff arises out of one of the most famous cases in American law, Palsgraf v. Long Island Railroad Co. [162 N.E. 99 (N.Y. 1928)]. The case remains important for the debate it raises about how to place limitations on the scope of liability.

 

§ 8.05  Conclusion [143-144]