34.1 Duty: Foreseeable Plaintiffs, Failure to Act & Control of Others

34.1 Duty: Foreseeable Plaintiffs, Failure to Act & Control of Others

NCBE's outline begins negligence with duty, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of others. Duty is a question of law for the court, so a negligence claim fails at the threshold if the defendant owed the plaintiff no duty.

---

The Duty of Care

A legal duty of care arises when an actor's conduct creates an unreasonable risk of physical harm to others. The fundamental questions are: To whom is a duty owed? and What is the applicable standard of care?

The Foreseeable Plaintiff: Palsgraf v. Long Island Railroad Co.

In Palsgraf v. Long Island R.R. Co. (N.Y. 1928), railroad guards negligently pushed a passenger carrying an unmarked bundle onto a departing train. The bundle contained fireworks, which fell onto the tracks and exploded. The shockwave toppled a heavy scale at the far end of the platform, striking Mrs. Palsgraf. Chief Judge Benjamin Cardozo and Judge William Andrews established the two competing philosophies of tort duty:

• The Cardozo Majority View (Zone of Danger): A duty of care is owed only to foreseeable plaintiffs located within the foreseeable zone of danger created by the defendant's conduct. If a reasonable person would not foresee any hazard to the plaintiff resulting from the defendant's action, no duty exists, and the plaintiff cannot recover, even if the defendant was negligent toward someone else ("Negligence in the air, so to speak, will not do"). Most courts follow this view.
• The Andrews Minority View (Universal Duty): Every member of society owes a broad duty of care to the world at large to refrain from acts that unreasonably threaten the safety of others. If a defendant breaches that duty by acting negligently toward anyone, the defendant is liable for any injury directly caused to another person, subject only to proximate cause limitations.

The Rescuer Rule

Rescuers are an exception to the zone of danger rule. Under the doctrine that "danger invites rescue" (Wagner v. International Ry. Co.), an actor whose negligence imperils person or property owes an automatic legal duty to any person who undertakes a reasonable rescue effort. A rescuer is deemed a foreseeable plaintiff as a matter of law, unless the rescue effort was utterly reckless or wanton.

---

Affirmative Duties to Act and Rescue

The General Common Law Rule

There is no general affirmative duty to act, rescue, aid, or protect another person in peril. An Olympic swimmer may sit on a dock and watch a stranger drown in shallow water without incurring civil tort liability.

Exceptions Imposing a Duty to Act

1. Creation of the Peril: If the defendant's own prior conduct (whether negligent or innocent) caused the victim to be placed in peril, the defendant owes an affirmative duty to use reasonable care to assist or rescue the victim.
2. Special Relationships:
   • Common carrier to passenger;
   • Innkeeper to guest;
   • Land possessor to business invitee;
   • Custodian to ward (school to student, prison to prisoner);
   • Employer to employee in the course of employment.
3. Voluntary Assumption of Care (The Good Samaritan Dilemma): One who voluntarily undertakes to render aid to a person in peril owes a duty to act with reasonable care and must not abandon the rescue if doing so leaves the victim in a worse position.

---

Duties to Control Others

The general rule is that a person has no duty to control the conduct of another to prevent harm to third persons. Duties arise, however, from certain relationships with the dangerous person:

• Parent and minor child: A parent who knows or should know that a child has a dangerous tendency, and who has the ability to control the child, must use reasonable care to do so—for example, by keeping firearms away from a child known to be violent.
• Employer and employee: An employer must use reasonable care to control an employee acting outside the scope of employment while on the employer's premises or using the employer's equipment. Negligent hiring, supervision, and retention claims are discussed in Section 36.1.
• Custodians of dangerous persons: A person who takes charge of someone known to be dangerous, such as a psychiatric hospital or jail, must use reasonable care to prevent that person from harming others.
• Mental health professionals: Under Tarasoff v. Regents of the University of California (Cal. 1976), a therapist whose patient presents a serious danger of violence to a reasonably identifiable victim must use reasonable care to protect that victim, such as by warning the victim or notifying the police. Many states have adopted this duty by statute or case law, often limiting it to explicit threats against identifiable victims; some make disclosure permissive rather than mandatory.
• Land possessors: A possessor who allows others to use the land must use reasonable care to control their conduct when the possessor knows it can and should do so.

Duties to Protect Against Third-Party Crime

• Special relationships with the victim: Businesses, landlords, schools, and common carriers may have to take reasonable precautions against foreseeable criminal attacks on their invitees, tenants, students, or passengers. A landlord who controls common areas, for example, may have to maintain reasonable security (Kline v. 1500 Massachusetts Avenue Apartment Corp., D.C. Cir. 1970).
• Foreseeability: Courts decide whether a crime was foreseeable by looking at prior similar incidents, the totality of the circumstances, or a balance of the likelihood and severity of harm against the burden of precautions.

Negligent Entrustment and Alcohol Providers

• Negligent entrustment: A person who supplies a car, gun, or other dangerous item to someone the supplier knows or should know is likely to use it dangerously—because of intoxication, inexperience, or recklessness—is directly liable for resulting harm.
• Dram shop acts: Many states make commercial sellers of alcohol liable to people injured by customers who were served while visibly intoxicated or underage. At common law, the drinker's own conduct was considered the proximate cause, so sellers were not liable.
• Social hosts: Most states do not hold social hosts liable for serving adult guests, although some do, especially when hosts serve minors. The New Jersey Supreme Court imposed liability on a host who kept serving a visibly intoxicated adult guest who then drove (Kelly v. Gwinnell, N.J. 1984).

Undertakings and Policy Limits

• Undertakings for others: A person who undertakes to render services that it should recognize as necessary to protect third persons—such as a company hired to inspect an elevator—is liable to those persons for failing to use reasonable care if the failure increases the risk, the actor took over a duty owed by someone else, or harm results because someone relied on the undertaking.
• Promises without performance: Traditionally, a mere promise to help created no tort duty unless the actor began to perform. Modern courts increasingly impose liability when the plaintiff relied on the promise.
• Good Samaritan statutes: Most states protect people who give emergency aid in good faith from liability for ordinary negligence, typically excluding gross negligence and people who expect payment.
• Public duty doctrine: Duties that government owes to the public at large, such as police protection, generally create no duty to particular individuals without a special relationship (Riss v. City of New York, N.Y. 1968). The Due Process Clause likewise does not require the state to protect individuals from private violence (DeShaney v. Winnebago County Department of Social Services, 1989; Town of Castle Rock v. Gonzales, 2005).
• Modern framework: The Restatement (Third) of Torts provides that an actor ordinarily owes a duty of reasonable care when its conduct creates a risk of physical harm, but courts may adopt no-duty rules for categories of cases based on policy.