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

Other factors, however, weigh against imposing a duty of care, even if harm is foreseeable and avoidable. Courts hesitate to create duties that impose excessive burdens on actors. A court might, for example, refuse to impose a duty on school officials to supervise school children at bus stops. Such a duty would impose an expensive burden on school districts, which can be fulfilled as well, if not better, by parents. Similarly, many courts have refused to impose a duty of care on municipalities to properly inspect private property. Here too, the burden on municipalities would be exceedingly broad, and the risk can be averted by owners. Similarly, a court refused to hold that a hospital has a duty to warn all patients of the risks of medications, on the ground that the duty would be too broad, and that it can be better fulfilled by the patient’s doctor. Kirk v. Michael Reese Hosp. & Medical Ctr., 513 N.E.2d 387, 396-397 (Ill. 1987).

Administrative problems of enforcing the duty may also influence the court’s judgment. For many years, courts denied liability for infliction of emotional distress on the ground that the risk of fraudulent claims and excessive litigation was too great. Similarly, they rejected claims for injury to fetuses partly on the ground that it would be extremely difficult to prove that the defendant’s conduct was the cause of prenatal injury.

In other cases, the chilling effect of imposing the duty has counseled hesitation. In Eiseman v. State, 511 N.E.2d 1128 (N.Y. 1987), the court refused to hold that a college had a duty to control the acts of a parolee admitted to a college enrichment program. The court was unwilling to create a duty that would force colleges to place discriminatory restrictions on the very persons the program was meant to assist in reintegrating into society. Similarly, some courts hare refused to impose a duty on theater operators to prevent violence by viewers of violent movies, to avoid chilling activity protected by the First Amendment. See, e.g., Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071-1072 (Mass. 1989).

Policies established by the legislature will also influence the court’s duty analysis. Courts that have imposed a tort duty on the police to arrest drunk drivers have noted the firm legislative policy of controlling drunk driving. See Irwin v. Town of Ware, 467 N.E.2d 1292, 1302 (Mass. 1984). Similarly, the Tarasoff court, in concluding that the psychiatrist had a duty to warn, rejected the argument that it would impair doctor/patient confidentiality in part because a statute rejected the privilege in situations involving danger to third persons. 551 P.2d at 346-347.

Other policy considerations may also be relevant to the duty analysis, depending on the facts of each case. In most, no single factor will be determinative; the judge will balance many to reach a conclusion. As an advocate, you may not always be able to predict that conclusion, but you can learn to identify factors relevant to the duty analysis, and to formulate arguments for or against imposing a duty based on those factors.

In many common situations, decades of precedent have defined fairly clearly the extent to which the courts will recognize a duty of care. The remainder of this introduction addresses common situations in which courts impose such a duty-or refuse to. However, it is important to remember that the duties described are not immutable truths; they are pragmatic policy judgments that may be reconsidered by future judges as society and public attitudes evolve.

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