Tort duties are not like chemistry’s Periodic Table of Elements. Nature’s elements (they tell me) have a physical existence quite apart from anything we might think about them. Chemists have identified them, but (with perhaps a few high-tech exceptions) they have not created them. Tort duties, on the other hand, do not exist in nature; they are made up by judges because they conclude that a duty ought to exist under the circumstances. “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” Tarasoff v. Regents of the Univ. of California, 551 P.2d 334, 342 (Cal. 1976). “[I]t should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Prosser & Keeton at 358. If a court concludes that society will be better off if store owners exercise due care to assist injured customers, it will create such a duty; if a court concludes that bystanders should not be legally bound to render aid in an emergency, it will refuse to create a duty to intervene, and so on.
This fundamental fact of tort life is not something to be embarrassed about: Determining the legal rights and obligations of the parties is the most fundamental task of judging. On the other hand, it is not particularly satisfying to students simply to tell them that the duty issue is difficult and judges have to decide it. Understandably, you want more guidance about such an important issue.
Though the duty issue is complex, we can at least identify major factors that judges consider in deciding whether to impose a duty in a given case. These factors include the judge’s sense of morality, the foreseeability and extent of the likely harm from the defendant’s conduct, the burden that the new duty will impose on the defendant, alternative ways of protecting the plaintiff’s interest, the increased safety likely to result from imposing the duty, the chilling effect the duty may have on defendants’ conduct, administrative problems for the courts in enforcing the duty, problems of proof, and others.
Certainly, the foreseeability of harm weighs heavily in favor of imposing a duty on the actor, since it makes basic good sense that a defendant “should” avoid foreseeable injuries to others. For example, it is highly foreseeable that a mental patient who threatens to kill a relative will do so if released from custody, or that a parent will suffer traumatic shock if a negligent driver hits his child. Where resulting harm is so likely to follow, the argument is persuasive that the court should impose a duty of care to prevent it.
The moral argument is also strong in many duty cases. Most people would believe that it is “right” for an employer to go to the aid of an injured worker, or a doctor to take steps to assure that an HIV-infected patient does not engage in unsafe sexual practices. This argument is particularly persuasive if the defendant is uniquely positioned to prevent harm. The psychiatrist who releases a patient who has threatened a relative, for example, may be the only one in a position to warn the relative. The police officer who stops a drunk driver is uniquely placed to prevent that driver from causing an accident.