parent nodes: Negligence Torts
Duty
Categories of duties
Affirmative acts
A person is under no duty to take an affirmative act to help another person without some prior duty. [Yania v Bigan] (NL where strip-mine owner taunted visitor into jumping into a ditch, then watched him drown.) However, once a person takes an affirmative act, regardless whether it is tortious, and he knows or has reason to know that by his conduct he has caused harm, he is under a duty to prevent such further harm. Rest 2d Torts 322.
A person may also be under a duty to stop doing something in order to help another. [Globe Malleable Iron v New York Central RR] (L where train engineer moving at 2 mph refuses to stop, blocking firefighter's access to fire).
Undertakings
A person who begins or attempts a rescue or other activities for another's protection, gratuitiously or for consideration, has a duty to do so with a reasonable standard of care. [US v Lawter] (L where person in water killed during Coast Guard Rescue); Rest 2d Torts 323. However, a person must have undertaken to help a particular person, rather than a class of persons or the public at large. [Harvey v Eddingfield] (NL where doctor refuses to drive to help sick man, leading to his death).
Special relationships
A few special types of parties have a duty to others based off common-law tradition:
- Ships have a duty to rescue their crewmen. [Petition of Trans-Pacific Fishing] (L where shipowner fails to look for crewmen thrown overboard). But see [New York Central RR v Grimstad] (ship's failure to look for crewmen not proximate cause of their death).
- Common carriers have a duty to their passengers while actively transporting such passengers. [Brosnahan v Western Airlines] (L to airline where passenger hit on head by baggage dropped by another customer); [Boyette v TWA] (NL where passenger at airport drunkenly fell into trash compactor).
-Landlords may have a duty to their tenants, at least as far as their safety within the building. [Kilne v 1500 Massachusetts Ave] (L where tenant mugged in hallway of her building). L
-Social hosts traditionally have no special duties to their hosts. [Charles v Siegfried] (NL to host where drunken guest later killed in car accident).
Dangerous third parties
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
(Rest 2d Torts 315)
As a result, a doctor may be liable to third parties for injuries caused by patients that the doctor knows may harm that third party. [Tarasoff v Regents of UC] (doctor liable to family of girl killed by doctor's patient who threatened specifically to kill the girl). But a duty may not arise from a general threat of danger or violence. [Thompson v County of Alameda] (NL where killer threatened to kill at least one child in neighborhood).
Public duty
The government owes a duty to protect its citizens as a whole, and not to any particular member of the public. [Riss v NYC] (NL where woman attacked after threats that she relayed to police). However, a public body may be liable to a particular person if that person has helped the police in its work, etc., in such a way as to put that person at risk. [Schuster v NYC] (L where plaintiff killed after helping city catch famous criminal).
Duty from possession of land
An occupier has no duty towards an undiscovered trespasser, but does have a duty towards a discovered trespasser. [Haskins v Grybko] (NL where hunter mistakenly shot trespasser); cf [Herrick v Wixom] (L where person who snuck into circus and sitting in front rows injured by circus firecracker).
A possessor is more likely liable to a trespasser, however, where the negligent danger originated on public land. [Ehret v Village of Scarsdale] (L where gas leaks into building, killing squatters).
Traditional categories:
A trespasser: owners have a duty of care for his activites where he knows that trespassers constantly invade a certain area, Rest 2d Torts 334, or where he knows that trespassers are near a hidden danger, Rest 2d Torts 337
A licensee is a person privileged to enter land only by and to the scope of the possessor's consent. Possessors have a duty to licensees for his activities unknown and undiscoverable to the licensees.
An invitee is a person privileged to enter land for purposes connected to the owner's business. Invitees can be members of the public entering a publicly open property, Rest 2d Torts 332(2), or business visitors privileged to enter for reasons connected to the possessor's business, Rest 2d Torts 333(3). Possessors have a duty to protect invitees against (or warn them of) hidden dangers on their land.
However, courts may be likely to abandon the traditional distinctions for a uniform reasonable standard of care owed to all persons on the owner's land. [Rowland v Christian] (L where guest cuts his hand on non-obvious crack on a faucet)
Procedural considerations
Since duty is a matter of law determined by judges, recharacterizing tort liability in terms of "duty" rather than proximate cause can effectively shift power from juries to judges.
Economic considerations
A defendant is more likely to hold a duty towards another where:
- information costs for identifying, being aware of the other person are low
- the defendant is the least cost avoider for the risk the other person faces
- the number of possibly deterrable wrongdoers (including the defendant) is low
- the defendant is the most easily singled out wrongdoer for deterrence (Levmore's argument for why failed rescuers can be liable)