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.
• Pure economic loss:  Courts are split as to whether P may recover for “pure economic loss,” unaccompanied by physical injury or property damage. The modern view is to allow P to recover for such economic loss (e.g., loss of business profits) if P was a member of an “identifiable class” that D knew or should or have known would be likely to suffer economic loss from D’s conduct.

I. “DUTY” GENERALLY

A. Introduction:  In the list of elements of a negligence cause of action given on p. 98, supra, one requirement was that the defendant owe the plaintiff a “duty of care”. In most tort cases, this duty is simply the duty of behaving towards the plaintiff with the degree of care that a reasonable person would exercise in like circumstances. In such cases, the courts devote relatively little attention to this general requirement of duty, since it is so uniform; instead, they spend most of their energies looking at whether the defendant’s conduct met this duty.

1. Special cases:  There are several classes of cases, however, where the courts have held that the defendant owes the plaintiff something less than or more than the exercise of the degree of care a reasonable person would use. Sometimes, courts have held that the defendant owes the plaintiff no duty at all. For instance, we saw in Palsgraf, supra, p. 158, that, under the theory of that case, the defendant owed no duty at all to a plaintiff who was outside the scope of the risk imposed by the defendant’s negligence. And we have alluded several times to the rules governing common carriers, who are held to a higher standard of care (the obligation to use extreme care) towards their passengers.