Torts

• 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.

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.

• 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.

• 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.

• 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 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.

• 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.