DUTY

2. Duty to protect or give aid:  Most nonfeasance cases arise when the defendant sees that the plaintiff is in danger, and fails to render assistance, even though she could do so easily and safely. As stated, the rule is that unless there is some special relationship between the defendant and the plaintiff, the former is not liable for her refusal to assist. See Rest. 2d, §314.

Example:  P is rowing his boat on a lake. P falls off, and while struggling, yells for help. D, a passer-by on the shore, sees this, and could easily throw P a life-preserver from the shore. But D does nothing, because she’s late for a tennis game. If P drowns and his estate sues D, D will win – since there was no special relationship between D and P, D had no obligation to assist P no matter how vital and easy-to-give this assistance would have been.

B. Exceptions:  Courts have, however, carved out an increasing number of exceptions to this general rule.

1. Special relationship:  One category of exceptions involves situations where a plaintiff and a defendant have some special relationship to each other.

a. Common carriers and innkeepers:  Thus it has always been the case that certain callings imposed a duty to furnish assistance to patrons. This has been true of common carriers with respect to their passengers and innkeepers with respect to their guests.

Example:  The Ps are passengers on board a bus operated by D, a public common carrier, when a violent argument erupts among a group of other passengers. The bus driver is notified of the situation but continues to drive the bus and fails to take any measures to protect his passengers. The Ps are injured in the violence, and sue D for negligence.

Held, because of the special relationship between a common carrier and its passengers, D had a duty to use utmost care and diligence to protect the Ps from the assaults. Bus passengers have no control over who enters the bus, and are dependent on the driver to summon help or provide a means of escape if trouble arises. Depending on the situation, this duty of care might be satisfied by a warning to the rowdy passengers, stopping the bus until the trouble subsides, installing a radio to allow contact with the police, or other measures – the point is that the bus company and driver have a duty to do more than merely stand by while passengers are subject to danger. Nor does the fact that D is a public rather than private carrier make any difference – although governments in general, and police departments in particular, are not liable for failing to protect the public against assaults, a common carrier owes such a duty of protection to passengers who have “accepted the carrier’s offer of tr The “relationship” identifieansportation and have put their safety, and even their lives, in the carrier’s hands. .  .  . ” Lopez v. Southern California Rapid Transit District, 710 P.2d 907 (Cal. 1985).