1. Overview
    • 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.
  2. Nonfeasance
    • 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
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