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Chapter 8

DUTY

  This chapter covers several quite distinct scenarios where courts may hold that P cannot recover because D did not owe P any “duty.” The main concepts in this chapter are:
  • Failure to act:  The law does not impose any general “duty to act. Therefore, as a general rule, D cannot be liable for merely failing to give P assistance. (But there are many exceptions.)
  • Effect of a contract:  Where the source of D’s duty to P lies in a contract, courts usually do not allow P to sue in tort for D’s failure to perform, and instead require that the suit be brought on a breach-of-contract theory.
  • Mental suffering:  Plaintiffs are sometimes allowed to recover for mental suffering caused by the defendant’s conduct, even where the plaintiff has not suffered physical injuries. Most controversial is whether P should be allowed to recover for mental anguish at seeing a loved one be injured.
  • Unborn children:  D may be liable for injuries inflicted on a fetus.
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