14 Negligence: Duty

Overview of Duty

Duty, the first of the four elements required in a negligence action, has a special character.

First, it is the only element of negligence decided by the court as a question of law, and thus operates as a gate-keeping mechanism to help define the contours of tort law and limit the scope of potential liability. To the extent that the system defines what tort law protects and against what, the duty inquiry has developed such that defendants do–or do not—owe a duty of care with respect to particular classes of potential plaintiffs, for particular types of losses, or on particular classes of fact patterns (since accidents occur and do fall, generally, into recognizable types). Judges decide the question of duty partly because they are thought to be better at deciding categorical kinds of questions. Judges are thought to be better able to see recurring patterns because over the course of a career on the bench a judge will decide and read many cases. Most jurors are likely to serve as factfinders only a few times in their lives, if ever. Jury expertise is thought to consist of everyday experience applicable to considering the particular facts of the single case before them. Yet judges have the capacity to “see the big picture” and categorize similar fact patterns together. Judges also have legal training that helps them to align the policy goals of tort law with the kinds of cases that ought to be decided at this earliest point in the negligence analysis.

Second, there has been a major evolution in how duty has been conceived, and it’s relevant to your understanding of the cases courts are deciding in the present era. The standard for duty in most cases today is whether it was foreseeable that the defendant’s actions would harm the plaintiff. If it was foreseeable, then under this modern view, the defendant owed a plaintiff a duty unless some special exception or limitation exists. “Foreseeable” is a term just about as unhelpful as “reasonable” in the sense that its meaning is malleable. Nonetheless, that’s the general contemporary approach. Sometimes it is attributed to a late 19th century case, Heaven v. Pender (1883) 11 Q.B.D. 503, 509, which stated:

“[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

The Restatement now reflects this view: “Ordinarily, a person engaging in conduct that creates risks to others has a duty to exercise reasonable care to avoid causing them physical harm.” Restatement (Third) of Torts § 6, cmt. b (2010)

However, historically at common law, it was virtually the opposite of this generalized view of duty. There was rarely an independent duty for you to act or to compensate someone for the losses they had suffered, unless you stood in a particular relationship with them. You were not liable, generally for “nonfeasance,” or choosing to do nothing. If you had contracted to help or provide services for them and you didn’t perform on that contract, their remedy was in contract law. If in providing services, you committed misconduct (“misfeasance”) or otherwise behaved carelessly and caused harm, you had breached your duty of care and the person injured by your conduct could recover in tort law. Technically there wasn’t a breach of contract since you’d carried out your promise under the contract; tort law provided an alternate means of redress for a problem that wasn’t breach but rather some sort of injury. The duty in tort law arose because of the contract and the corresponding legal obligation to compensate for the injury caused by the careless fulfillment of the contract sounded in tort law. Consequently, this may have reinforced the view that without a contract, recovery in tort was nearly impossible without some alternative source of duty flowing between the parties. Indeed, that was one way courts kept the early scope of negligence law narrow.

The concept of “privity,” a contract-like relationship, arose to define a legal relationship broader than a contract, and courts allowed tort recovery for those who “stood in privity” with one another. For instance, a customer who bought goods or chattels from a merchant stood in privity with them (despite the lack of a formal contract) but their non-purchasing spouse did not. This caused some case outcomes that seemed puzzling and unfair; why shouldn’t the non-purchasing spouse be able to recover in tort law when the product caused them injury and they were very much a foreseeable user of the product? Over time, the concept of privity continued to expand in piecemeal and the restrictions on recovery relaxed until the requirement of privity, too, yielded. In cases where there was no contract or privity, courts increasingly looked for a “special relationship” between parties. Under this approach, while strangers did not owe each other a duty to assist each other, those who stood in a special relationship even without a contract or privity—such as family members, close friends or members of a group engaged in an activity together—were commonly found to have a duty arising out of that special relationship. In addition, when a person voluntarily undertook a rescue of some kind (or simply stepped in to help), their actions created a duty to follow through with what they had offered, behaving reasonably under the circumstances. These means of creating a duty—through special relationships or voluntary undertakings—remain important in the legal system today.

The early twentieth century witnessed the expansion of duty to a sphere of foreseeable people who might suffer harms from one’s tortious conduct and who thus deserved compensation regardless of contract or privity. Courts routinely articulated the scope of the duty to behave reasonably in language that left no room for doubt: “[E] very person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and … such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.” Union Wire Rope Corp., 31 Ill.2d 69, 86 (1964) These changes in the law largely originated in the domain of product liability law where the expansion of duty paved the way for the broader default rule that has come to be the majority rule: everybody owes a duty of care to refrain from conduct that foreseeably harms others.

In the contemporary era, however, stubborn exceptions to the traditional rule of no duty remain, creating a diversity of rules with regard to duty. In a subset of cases there remains no duty while in other areas (such as premises liability and the duty to compensate for purely emotional losses) that old rule has been eroded over time to a patchwork of rules that create duties to take certain steps under certain circumstances. These have sometimes been classified as “general” versus “affirmative” duties, intended to track the categories of “misfeasance” (which there was a general duty to avoid) and “nonfeasance” (which gave rise to no duty except in cases where a so-called affirmative duty arose because of a special relationship or voluntary undertaking as noted above, or under other exceptions).

An Updated Way to Categorize Types of Duty

Although this has been the way law students were traditionally instructed on the law of duty, these terms (misfeasance/nonfeasance; general/affirmative duty) are not that useful. Students and professors alike have long found them very difficult to define and apply. Consider that “misfeasance” could include both negligently fixing your car’s brakes by going to an unlicensed irresponsible mechanic or failing to take action with respect to your service light’s warning that your brakes might fail soon. Yet failing to take action sounds more like “nonfeasance” which in theory gives rise to no duty. There are formalistic ways to arrive at the conclusion that in fact there is a duty to get your brakes fixed—cars are dangerous vehicles and some states find there is a “non-delegable duty” to make sure your vehicle is safe for driving, for instance. But that general problem of action versus inaction remains a thorny one and this division has puzzled theorists.

Beyond that, the terms are outdated and hearken back to an era when landlords owed their tenants no duty and even landowners’ duties to entrants were more tightly circumscribed. Recently, two preeminent torts scholars have called for a recognition that the “exceptions” formerly understood in terms of “affirmative duties” can be understood either as articulations of the general duty or as subsets of now well-settled law in which the default is no longer “no duty.”

These distinctions are problematic in both descriptive and normative respects. On a descriptive level, many cases of what tort law calls nonfeasance are difficult, if not impossible, to distinguish from misfeasance. Similarly, sometimes even misfeasance does not look like misfeasance; there are instances of what tort law calls misfeasance that are hard to distinguish from nonfeasance. On a normative level, meanwhile, the distinctions’ significance can be difficult to discern. Even in paradigm cases where the descriptive distinction between misfeasance and nonfeasance is clear—such as the case of the driver who hits the pedestrian versus the bystander who fails to rescue—the normative distinction can be elusive. Kenneth S. Abraham and Leslie Kendrick, There’s No Such Thing As Affirmative Duty, 104 Iowa L. Rev. 1649 (2019).

The challenge in offering an updated, revisionist approach to duty lies in the fact that the other resources students may consult (hornbooks, commercial outlines, bar preparation materials) and the older cases they read will likely contain some references to these outdated terms. The virtue in revisionism, however, lies in offering the opportunity for greater conceptual clarity and what is now a more accurate view of the case law. To that end, this textbook will refer to the older categories that have been used to define classes of duties and their “exceptions” (such as voluntary undertakings and special relationships; those are still “good law”). However, I dispense with the language of “affirmative duty” and, following Abraham and Kendrick, try to situate the duty cases in the legal contexts in which these contemporary rules have developed. I will not emphasize the “misfeasance” versus “nonfeasance” distinction any further as I do not believe it is productive and years of conversations with students has persuaded me that they do not find it helpful either.

Duties By Type of Actor and Type of Harm

Special duties historically have applied to certain classes of actors, including common carriers (as you learned in the discussion preceding Gulf v. Luther), innkeepers and landowners. It was expedient for courts to determine the legal obligations of whole classes of entities in this way since the rules affected so many people. Creating predictable patterns of potential liability allowed businesses to plan for or prevent it and to conduct their operations with some amount of awareness of with their likely legal risk. With respect to landowners (as well as possessors and occupiers of land), there is a significant jurisdictional divergence you will want to keep straight so you learn and differentiate both the majority and minority approaches.

In my view, there is also a hybrid nature to the way duty is determined in cases associated with property. Ordinarily, the question of duty is distinct from the conduct that the duty requires. For instance, to say that a common carrier has a duty (or even a heightened duty in some jurisdictions) does not specify what that requires them to do. So-called “premises liability,” which flows from the duties one has in association with maintaining property for those who enter it is unusual in that the duty may be accompanied by particular actions the duty requires (such as a duty to warn of a hidden danger or a duty to fence off a dangerous feature). That premises liability diverges from the general framework makes determining the duty of landowners unusually complex at times. Students (and courts!) find the distinctions between duty and breach of duty understandably confusing so anticipating the complexity and confusion somewhat can be helpful.

A final way that courts have modulated the scope of tort law and used duty as a gatekeeping measure is through the kinds of losses for which tort law permits recovery. Courts have consistently held that parties may not recover for purely economic losses and this has been framed in terms of duty: there is no duty to prevent purely economic losses to another. For most of the history of U.S. tort law, courts were reluctant to allow parties to recover for purely emotional losses, as well. That restriction has been eroded over time with the rise of actions for intentional infliction of emotional distress as well as negligent infliction of emotional distress. In practice, both torts are rarely viable alone, without other accompanying actions. In almost all jurisdictions that recognize the negligent version of the tort, the action is limited by requirements that reflect the longstanding judicial reluctance to open the floodgates to emotional distress claims more broadly. This means that there is effectively only a limited duty to prevent purely emotional losses; the duty will depend on a number of factors set out in a given jurisdiction.

Expand On Your Understanding – Choking Victim Duty Hypotheticals

Review the following hypotheticals. Turn each card to reveal the answer.

Questions or Areas of Focus for the Readings:

  • Do you agree with where courts do and don’t find a duty exists? Descriptively? Normatively?
  • Look for references to the purposes of tort law, even if you find them by “reading between the lines”; what role can you see duty playing as a factor in shaping tort policy?
  • When are courts choosing to diverge from older rules versus pronouncing themselves constrained by prior precedents or rules? What do you notice about fact patterns in which courts do or don’t announce a change?
  • In what ways do you see duty analysis reflecting sociological issues or context? If you changed the gender of the parties in the cases that follow, or made race or class explicit with respect to one or the other of the parties, for instance, might the analysis change?


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