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The Elusive Element of Duty: Two Principles in Search of  an Exception

INTRODUCTION

It is hornbook law that the plaintiff in a negligence case must prove four elements in order to recover: duty, breach, causation, and damages. Even if the defendant was negligent, and that negligence caused in^{jury to the plaintiff, the defendant will not be liable unless he also owed the plaintiff a duty of care. This chapter addresses the elusive element of duty.}

It hardly seems that this should be a problem: Don’t we all owe a duty to everyone not to injure them by our own negligence? Such a universal duty of care would simplify negligence law considerably: It would effectively eliminate the duty element from the plaintiff’s burden of proof, since a duty of care would always exist. Although such a broad rule is tempting, courts have not been willing to impose a universal duty of due care. Courts have often refused to hold defendants liable, even though they have caused clearly foreseeable harm to the plaintiff. Here, for example, are some situations in which many courts would deny recovery even though harm was to be anticipated from the defendant’s conduct.

a.   Adler visits city hall to pay a traffic ticket. While walking up the stairs, he sees a pen lying on the edge of one of the stair treads. He fails to pick it up, and Skinner later falls on it, breaking a leg.

b.   Federal Safety Insurance Company provides fire insurance for industry. To reduce claims, Federal inspects the premises of the companies it insures for fire hazards before issuing a policy. Federal Safety inspects Rainbow Paint Company’s factory, but neglects to enter a small room in which oily rags have been left in a pile. A week later, Skinner, an employee at the plant, is burned in a fire started by those rags. He sues Federal for failing to prevent the fire by seeing that the rags were removed.

c.   Reik is driving down a rural highway and witnesses an accident in which White drives into a tree. Unwilling to get involved, she drives on. White is not found for an hour, and his injuries are aggravated by the delay in receiving treatment.

d.   Dr. Rogers treats Jung for an infectious form of hepatitis. He is aware that Jung is a professional dancer. However, he makes no effort to warn other dancers who may have contact with Jung. Klein, a member of Jung’s dance troupe, contracts hepatitis from Jung.

In each of these examples, the actor was (we will assume) negligent, and that negligence caused the plaintiff’s damages. Yet many courts would refuse to allow recovery in these cases, on the ground that the actor did not owe a duty of care to the plaintiff.