Skip to main contentNegligence: Duty of Care
1. Establishing a Duty
Black Letter Law / Rule
To establish a Prima Facie case for Negligence, the plaintiff must prove four elements: Duty, Breach, Causation, and Damages. For the first element, Duty, there are three specific pathways to prove its existence:
- Affirmative Act creating Risk: When a defendant engages in an activity that increases the risk of physical harm towards foreseeable plaintiffs, the defendant owes a duty to act as a reasonable, prudent person under the circumstances.
- Foreseeable Plaintiff: Someone located within the “Zone of Danger”.
- Zone of Danger: Defined as the area of increased risk of physical harm.
- Negligence Per Se: Violation of an applicable statute (usually criminal) establishes a presumption of the existence of a duty and breach thereof.
- Privity of Contract: A duty is established via a contractual relationship between the parties.
Nuance & Policy
- Litigation Strategy: Never rely solely on “No Duty” as a defense. A competent attorney argues all elements (Duty, Breach, Causation, Damages) because if the court finds a duty exists, relying only on that single defense will result in a loss.
- Duty as a Limiting Tool: Duty functions as a liability-limiting tool for courts.
Privity and Product Liability
Black Letter Law / Rule
Historically, duty was limited to those in Privity of Contract (e.g., Winterbottom). However, modern law has eliminated both vertical and horizontal privity as requirements for finding a duty of care in negligence regarding defective products.
- Vertical Privity: The chain of distribution (Manufacturer -> Wholesaler -> Retailer -> Consumer).
- Horizontal Privity: The relationship between the buyer and others who might use the product (e.g., a guest, a passenger).
Key Cases
- MacPherson v. Buick Motor Co.
- Facts: Buick manufactured a car with a defective wooden wheel. The wheel collapsed, injuring the plaintiff (who bought the car from a dealer, not Buick directly).
- Holding: A manufacturer owes a duty of care to foreseeable users (consumers) even without privity of contract. By engaging in the activity of manufacturing and putting a defective product into the stream of commerce that increases the risk of physical harm, a duty is created.
- Winterbottom (Common Law Context)
- Facts: A mail carrier was injured by a defective carriage but was not the one who contracted for its repair.
- Holding: Under old common law, no duty was owed because there was no privity of contract between the repair shop and the mail carrier.
Feasance: Classifications of Conduct
Black Letter Law / Rule
Attorneys must distinguish between three types of conduct regarding duty:
- Malfeasance: Performing an act that is illegal or wrongful (e.g., setting a fire).
- Misfeasance: Performing a legal act improperly or inadequately, which causes harm (e.g., medical malpractice, fixing brakes incorrectly).
- Nonfeasance: Failure to act when there was a duty to act.
Key Cases
- H.R. Moch Co. v. Rensselaer Water Co.
- Facts: A water company contracted with the city to provide water. A fire occurred at plaintiff’s warehouse, and there was insufficient water pressure to stop it. Plaintiff sued the water company.
- Holding: The water company was not liable. This was nonfeasance (failure to confer a benefit). The contract was with the city, not the resident; failure to provide sufficient pressure is a denial of a benefit, not the commission of a wrong.
Foreseeability and Duty (Firearms)
Black Letter Law / Rule
Mere ownership of a firearm does not automatically create a duty of care to third parties to prevent others from using it. Foreseeability is the test for duty, but it requires recognizing an undue risk, not just that a specific mechanism of harm is possible.
Key Cases
- Brown v. Kerr
- Facts: Defendants’ son stole a gun from their locked cabinet and shot his friend. Parents knew the son had previous behavioral issues (stealing meds) but didn’t think he had a drug problem.
- Holding: The parents owed no duty. It was not foreseeable that the son would take the gun and shoot someone merely because they owned a gun. Guns are not inherently dangerous instruments when sitting stored.
Hypotheticals & Examples
- The High & Angry Son: If the parents saw their son was high and angry at his friend, and then left a loaded gun on the kitchen counter, the court would likely find a duty. The specific facts make the harm foreseeable.
Social Host Liability
Black Letter Law / Rule
A social host owes a duty of reasonable care to third parties if they serve alcohol to a guest knowing that the guest is intoxicated and will effectively be operating a motor vehicle.
Key Cases
- Kelly v. Gwinnell
- Facts: A host served a guest drinks. The guest drove home intoxicated and caused a head-on collision with the plaintiff.
- Holding: The host is liable. Serving alcohol to an intoxicated guest who is known to be driving increases the risk of physical harm to foreseeable plaintiffs (other drivers/pedestrians).
Nuance & Policy
- “Pick Your Poison”: A host might fear being sued for “False Imprisonment” if they take a guest’s keys or physically stop them. However, legally and ethically, risking a false imprisonment claim is preferable to the liability and moral cost of the guest injuring or killing someone.
Duty to Warn / Continuing Duty
Black Letter Law / Rule
If a defendant’s prior conduct (even if non-negligent at the time) creates a continuing risk of harm, the defendant owes a continuing affirmative duty to warn or rescue the plaintiff once the risk is discovered.
Key Cases
- Trezmer v. Barke
- Facts: Doctor implanted a Dalkon Shield. At the time, it was considered safe. Years later, it was found to be dangerous. The doctor failed to warn the patient.
- Holding: The doctor owed a duty to warn the patient of the newly discovered risk.
Duty of Universities (Moral vs. Physical Safety)
Black Letter Law / Rule
Universities generally assume a duty regarding the physical safety of students in controlled areas (like dorms). However, they owe no duty to protect adult students from “moral decay” or the social influences/activities of their peers off-campus.
Key Cases
- Hegel
- Facts: Parents sued a university alleging it failed to protect their daughter from falling into a “low life” and bad influences.
- Holding: The university was not liable. Protection from assault/robbery is a distinct legal duty from protection against moral failure or social vices.
Duty to Rescue / Aggravation of Injury
Black Letter Law / Rule
General Rule: There is no general duty to rescue a stranger in peril. Exception: If the defendant controls the instrumentality causing the injury, or has a special relationship, a duty arises to take affirmative steps to prevent aggravation of the injury.
Key Cases
- L.S. Ayres & Co. v. Hicks
- Facts: A 6-year-old boy got his fingers caught in a department store escalator. The store delayed shutting it down, aggravating the injury.
- Holding: The store was not liable for the initial injury (finger getting caught) but was liable for the aggravation of the injury because they controlled the escalator (instrumentality) and failed to stop it reasonably quickly.
Duty to Third Parties (Mental Health Professionals)
Black Letter Law / Rule
While doctor-patient confidentiality is a strong privilege, it is overridden when a therapist determines (or should determine) that a patient poses a serious danger of violence to a specific third party. In such cases, the therapist owes a duty to warn the intended victim or law enforcement.
Key Cases
- Tarasoff v. Regents of University of California
- Facts: A patient (Poddar) told his psychologist at UC he intended to kill Tatiana Tarasoff. The police released him; he later killed her. No one warned Tatiana or her parents.
- Holding: The university/therapists were liable. Protective privilege ends where the public peril begins. This created the requirement for “Tarasoff Warnings”.
Pure Economic Loss (The Physical Impact Rule)
Black Letter Law / Rule
The Physical Impact Rule: In the absence of physical impact (to the plaintiff’s person or property), there is no duty of care for pure economic loss.
Hypotheticals & Examples
- The 101 Freeway Crash:
- Scenario: Driver A negligently rear-ends Driver B. This causes a 3-mile traffic jam. A florist 1 mile back is stuck for 2 hours, and $10,000 worth of flowers wilt (economic loss).
- Outcome: Driver A is liable to Driver B (physical impact/injury). Driver A is not liable to the Florist. Although the loss was foreseeable and caused by the negligence, duty cuts off liability because there was no physical impact to the florist.
Pure Emotional Distress (Preview)
- Note: While discussed briefly, the main cases for Pure Emotional Distress (as opposed to economic loss) are Daley and Thing. These govern negligent infliction of emotional distress (NIED) and third-party bystander recovery.
