Negligence: Duty and the Standard of Care

To Whom Is a Duty Owed? The Foreseeable-Plaintiff Question

Negligence has four elements: duty, breach, causation, and damages. Duty is the threshold legal question. Everyone owes a general duty to act as a reasonably prudent person to avoid creating unreasonable risks of injury to others — but only to foreseeable plaintiffs.

The scope of duty is framed by Palsgraf v. Long Island R.R. Under the majority (Cardozo) view, a duty is owed only to plaintiffs within the zone of foreseeable danger created by the defendant's conduct. Mrs. Palsgraf, standing far down the platform, was outside that zone, so the railroad owed her no duty when its employee dislodged a passenger's fireworks. The minority (Andrews) view holds that a duty is owed to everyone once the defendant is negligent toward anyone, treating the foreseeability question as one of proximate cause instead. The MBE tests the Cardozo zone-of-danger framing as the majority rule.

A recurring sub-issue is the unforeseeable plaintiff — the rescuer is the classic exception. 'Danger invites rescue' (Wagner v. International Ry.): a rescuer is a foreseeable plaintiff, so a defendant who negligently imperils someone (or himself) owes a duty to those who come to the rescue, unless the rescue is wanton.

The Reasonable-Person Standard and Its Variations

The baseline standard of care is the reasonably prudent person under the same or similar circumstances — an objective standard. The defendant's own shortcomings generally do not lower the bar: a person of below-average intelligence, clumsiness, or inexperience is still held to the reasonable-person yardstick. But the standard flexes in defined ways:

For children, the standard is subjective and child-protective — but the dangerous-adult-activity exception (operating motor vehicles, powerboats, firearms) snaps the child back to the adult standard. Most jurisdictions also hold that a child under a certain age (often under 5, or under 7 at common law) is incapable of negligence at all.

For professionals, custom is dispositive: the standard is what a reasonable member of the profession in good standing would do, established by expert testimony. Medical malpractice adds informed consent — a physician must disclose the material risks of a procedure; California uses a patient-based materiality standard (what a reasonable patient would want to know, Cobbs v. Grant).

California's Rowland v. Christian Duty Factors and Affirmative Duties

At common law, the duty a landowner owed depended on rigid categories: trespassers (no duty except to refrain from willful/wanton harm, plus the attractive-nuisance doctrine for child trespassers), licensees (warn of known, concealed dangers), and invitees (reasonable inspection and care). California abolished these categories. Under Rowland v. Christian (1968), a land possessor owes a general duty of ordinary care to all entrants, and the entrant's status is just one factor in the analysis. Courts weigh the Rowland factors:

1. Foreseeability of harm to the plaintiff;
2. Degree of certainty the plaintiff suffered injury;
3. Closeness of the connection between conduct and injury;
4. Moral blame attached to the defendant's conduct;
5. Policy of preventing future harm;
6. Burden on the defendant and consequences to the community;
7. Availability and cost of insurance.

Note: a 2011 California statute restored limited immunity barring liability for injuries to trespassers committing certain felonies (Civ. Code § 847), but the Rowland reasonable-care framework otherwise governs. On a California essay, discard the trespasser/licensee/invitee labels as the rule of decision and apply Rowland.

Affirmative duty to act: The default rule is that there is no duty to rescue or aid a stranger. Affirmative duties arise only when: (a) a special relationship exists (common carrier–passenger, innkeeper–guest, employer–employee, parent–child, jailer–prisoner, business–patron); (b) the defendant caused the peril (even innocently); (c) the defendant undertook to help and did so negligently or left the plaintiff worse off; or (d) by contract or statute. A defendant who begins a rescue must act with reasonable care (and Good Samaritan statutes shield voluntary medical aid).

California NIED — bystander recovery (Thing v. La Chusa, 1989): A plaintiff who suffers serious emotional distress from witnessing injury to another may recover only if she (1) is closely related to the victim, (2) is present at the scene and aware the event is causing injury at the time it occurs, and (3) suffers serious emotional distress beyond that of a disinterested witness. The 'direct victim' branch (e.g., a mishandled corpse, a negligent misdiagnosis communicated to a patient) does not require the Thing factors.