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- 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 riskcreating
- conduct generally owes a duty to avoid causing foreseeable personal injuries toforeseeable plaintiffs.
- Typically, there is no duty owed in a nonfeasance context. Nonfeasance is generally thefailure 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.
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.
- 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 captainseaman.
- 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.
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.
- 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.
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.
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.
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 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.
The Limits of the Misfeasance/Nonfeasance Distinction
- 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.
The Foreseeable Plaintiff Requirement
- 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.