DUTY

2. Scope of this chapter:  This chapter considers several kinds of cases in which, because of either the nature of the plaintiff (e.g. an unborn child), the type of harm suffered (e.g., pure mental suffering, with no physical effects) or the plaintiff’s relation to an occurrence (e.g. mere bystander), the defendant is held to have violated no duty to the plaintiff.

a. Conclusory term:  As will be quickly seen in these cases, courts use the concept of “duty” in a highly conclusory manner. That is, because they wish to avoid allowing recovery, they state that the defendant owed no duty to the plaintiff to avoid the harm in question. The concept of duty is thus similar to that of proximate cause, and many of the cases discussed in this chapter could have been treated in the previous one.

i.         Illustration:  For instance, in a case raising the question whether the plaintiff may recover for emotional suffering not accompanied by physical symptoms (to which the answer is almost always “no”), the case may be decided on the basis of whether the defendant owes the plaintiff a duty to avoid this kind of harm (the approach followed here) or, by contrast, on the basis of whether emotional harm unaccompanied by physical harm can ever be so foreseeable and closely related to the defendant’s conduct that the latter should be held to be the proximate cause of the former.

b. Other examples:  Other situations in which the usual standard of duty is modified are considered in other chapters. The most important of these involves owners and occupiers of land, treated in a separate chapter beginning infra, p. 235. Vicarious liability of employers, car owners, etc. may also be seen as a modification of the general duty of care; such liability is discussed infra, p. 313.

II. FAILURE TO ACT

A. No general duty to act:  Can a person be liable in tort solely on the grounds that she has failed to act? The general answer to this question given by the common law, an answer which continues today, is “no.”

1. Misfeasance v. nonfeasance:  Thus the law distinguishes sharply between misfeasance (i.e., an affirmative act which harms or endangers the plaintiff) and nonfeasance (a mere passive failure to take action). All the cases we have seen thus far involved defendant’s conduct of the former category. Many of the cases refusing liability for nonfeasance which we will examine here are generally considered absolutely scandalous by commentators, and are a unique product of Anglo-American law with almost no counterpart in other Western countries.