What do we mean by “duty”? While this question is still debated, the majority of courts find that one owes a duty to those persons whom one could foresee would be put at an unreasonable risk of harm should the actor not act with reasonable care (i.e., as would a reasonable person under the circumstances). Thus, for example, an on-duty lifeguard at a swimming pool would owe a duty to the swimmers to have them remain in his eyesight. In contrast, with regard to the swimming pool activity at least, the lifeguard would not owe a duty to the operator of the poolside snack canteen.
In one famous opinion, the judge wrote that “duty ” is “relational.” That is to say, there is no duty in the abstract, or “duty in the air.” In stead a person will only or a duty to someone he can reasonably foresee will be put at un unreasonable risk should act without ordinary care under the circumstances.
4 Some of the problems that follow are derived from “Illustrations” contained in the Restatement (Second) of Torts.
With this in mind, what is the “relation” that permits the conclusion that the lifeguard owes a duty to the swimmers? The answer is that he is the primary emergency responder. Why would there be an automobile driver’s duty to pedestrians? A duty would be owed because pedestrians would foreseeably be injured if he drove carelessly. A physician to a patient? She has held herself out as a provider of expert medical advice and the patient has sought her would for that reason, and she knows therefore that she has a duty to act as would a reasonably prudent physician under the circumstances.
Does the “duty” change dependent upon whether the actor is a lifeguard, a driver, or a physician? No, the duty is constant: to act as a reasonably prudent person under the circumstances. The circumstances, not the duty, changes. Thus that acts that will be required of a lifeguard, a driver, or a physician to achieve a level of ordinary care under the circumstances will vary. The duty to conform one’s conduct to that of a reasonably prudent person under the same or similar circumstances is always the same..