Torts Notes - Duty

It is hornbook law that the plaintiff in a negligence case must prove four elements in order to recover:  duty, breach, causation, and damages.  Even if the defendant was negligent, and that negligence caused the injury to the plaintiff, the defendant will not be liable unless he owed the plaintiff a duty of care.

Courts have often refused to hold defendants liable, even though they have cause clearly foreseeble harm to the plaintiff.

Courts generally refuse to impose liability for doing nothing.

The fact that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

The origin of the rule lay in the early common law distinction between actio and inaction, or "misfeasance" and "non-feasance".  In the early law, one who injured another by a positive affirmative act was held liable without any great regard even for his fault.  But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act.  Hence, liability for nonfeasance was slow to receive any recognition in the law.

The defendant whose act (misfeasance) endangers the plaintiff has "created a new risk of harm to the plaintiff, while by "nonfeasance" he has at least made the plaintiff's situation no worse and has merely failed to benefit him by interfering with his affairs".  Other defenders of the principle emphasize the infringement on individual liberty posed by coercing services from unwilling bystanders and the difficulty of defining the duty if it is to be imposed.

Most european countries, and Vermont impose a limited duty to aid.  Most american courts have not rejected the 'no-duty-to-act" rule outright.

A defendant's choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct.

Duty based on risk creation:  In most cases, risk creation is the obvious basis of the duty to exercise due care.

Courts have not hesitated to create "affirmative duties" to act for the protection of another where some policy justifies departing from the no-duty rule.

Duty based on special relationship to the perpetrator:  One who takes charge of a third person whom he knows or should kow to be likely to cause bodiliy harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. 

Duty based on innocent creation of the risk:  if the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.

Gratuitous Services Exception

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
a.  the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or
b.  the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.

There is no general duty to act for the benefit of another
those who chose to act owe a duty to others to use due care in such conduct.

Two types of limitations that courts place on liability:

First, limiting liability ot the foreseeable consequences of the defendant's negligent act
Second, denying liability for consequences that are foreseeable, for the types of policy reasons discussed in this chapter.

There is a distinction between refusing to impose liability for unforeseeable consequences (the classic proximate cause situation) and refusing, for policy reasons, to impose liability for ones that are foreseeable (the classic duty limitation.)

Child abuse statutes are triggered by knowledge of actual abuse, not just knowledge of a risk.

A bystander owes no duty to aid another unless the bystander has placed the victim in peril or has a previous relationship with the victim that supports a finding of duty.

Choice to intervene does not require person assisting to continue his services until the recipient of them gets all of the beneift which the actor is capable of bestowing.  But he must still act with reasonable consideration for the other's safety.

There is no duty on a rescuer to continue giving assistance until the victim no longer needs any.

Good samaritan laws are to encourage bystanders who are not obligated to render assistance to do so anyway, by giving them a measure of protection from liability.  Such statutes are not intended to grant immunity to persons who already have a duty to render assistance.

Duty is a question of law.  It is up to courts to define enforceable legal duties, not juries.  The judge should instruct the jury as to the duty owed in each ase.

In third party cases, there is a duty ot exercise reasonable care to prevent injury from the dangerous person.