Duty & Special Relationships — Torts

You are an Olympic swimmer standing at the edge of a pool. A stranger is drowning an arm's length away. You could reach in without getting your hair wet. You watch him go under. Have you broken the law? No. By default, the law does not require you to lift a finger for a stranger, no matter how easy it would be.

That rule startles every first-year student and most jurors, and it is the gate this whole episode is built around. Duty comes first in negligence, before anyone asks whether the defendant was careless. And the answer flips on one act. Had you waded in and then changed your mind, you could be liable. Same swimmer, same pool, different rule.

Here is the route. First the gate itself, who is owed a duty at all, and the split over the unforeseeable plaintiff. Then the line between acting badly and not acting, and the five exceptions that force you to act. Then three more worlds. Land and the people who come onto it, emotional harm with no physical injury, and losses that are purely financial.

Negligence has four elements. Duty, breach, causation, and harm. Duty comes first because it is the gatekeeper. Before a jury ever asks whether the defendant was careless, the judge asks a legal question. Did this defendant owe this plaintiff any obligation to be careful at all? If the answer is no, the case is over, however sloppy the defendant was.

Start with the default, which is generous. Under § 7 of the Restatement (Third) of Torts, whenever your own conduct creates a risk of physical harm, you owe a duty of reasonable care. Driving a car. Carrying a ladder across a sidewalk. Running a store. No special relationship needed, no contract. Creating the risk is enough. Lawyers call that misfeasance.

The hard questions live at two edges. First, the plaintiff nobody could have seen coming. A railroad guard shoves a late passenger to boost him onto a moving train. The passenger drops a plain, unmarked package. It holds fireworks, which explode. The blast topples a heavy scale at the far end of the platform, injuring Mara, standing yards away. Was Mara owed a duty?

Under the majority view, no. A duty runs only to those within the foreseeable zone of danger, and nothing about an unmarked parcel made Mara a foreseeable victim. She stood outside it, so her claim ends there. Under the minority view, the guard owed a duty to everyone, and her freak injury gets handled later, as proximate cause. Either way Mara loses. The exam tests the label.

One warning. Zone of danger comes back later, in emotional-distress law, meaning something related but distinct. Keep the two uses apart.

Now the second edge, and it is our swimmer. The law draws a line between misfeasance, active conduct that creates a risk, and nonfeasance, a passive failure to help or to prevent harm you did nothing to cause. Misfeasance carries reasonable care. Pure nonfeasance carries none. Under § 37, an actor whose own conduct created no risk owes no duty unless a recognized exception applies.

Courts admit the rule feels cold, but they worry about where a duty to rescue would stop. So the common law kept the default and grew five exceptions in its place.

Exception one. A special relationship with the victim. Under § 40 the list is short and worth memorizing. A common carrier with its passengers. An innkeeper with its guests. A business holding its premises open to the public. An employer with its employees. A school with its students. A landlord with its tenants. A custodian with those in its custody.

That duty reaches the foreseeable criminal acts of third parties. A guest is assaulted in a dim, unlocked stairwell where muggings have happened before. Innkeeper and guest, so the hotel owed reasonable security. Two limits keep this sane. The duty is reasonable precautions, not a guarantee. And it covers risks within the scope of the relationship, not every misfortune.

Change one fact. The identical assault happens to a stranger on the public sidewalk outside. No relationship, and absent something more, no duty at all. Same hotel, same mugger, no case.

Exception two. Your prior conduct created the risk. Under § 39, conduct that creates a continuing risk of physical harm obliges you to take reasonable care to prevent it, and here is the part people miss. Even conduct that was not tortious counts. Driving carefully and at no fault, Dev's truck kicks up a rock that shatters a bottle and scatters glass across a highway lane. Does he owe anything?

He does. He made the hazard, so the law expects him to mind it. Warn oncoming drivers, call for help, clear the debris where he safely can. Driving on and letting the next car hit the glass is a breach. Innocence at the start excuses nothing once the danger is in motion.

Exception three, the rescuer's trap. The law does not force you to help, but the moment you choose to, it holds you to reasonable care. Under § 42 and § 44, one who undertakes a service another needs for protection, or takes charge of someone helpless, must act carefully. Two ways to be liable. Leaving the victim worse off, and quitting after someone relied on you.

Priya sees a cyclist knocked unconscious on a road and calls out, I've got him, everyone go on. The crowd disperses. If Priya then walks away, leaving him in the road, she can be liable. Her undertaking waved off the other rescuers. Two softeners. Good Samaritan statutes protect volunteers at an emergency from ordinary negligence, though not gross. And the standard is reasonable care in the heat of the moment.

Exception four flips the relationship around. Under § 41, a special relationship with the dangerous person can require you to control them, or warn their likely victims. A parent with dependent children. A custodian. An employer, where the job supplies the means or occasion. A mental-health professional with patients. Its cousin is negligent entrustment. Hand your car to a visibly drunk friend and you answer for what follows.

Notice the pivot, because the exam blurs it on purpose. In exception one the relationship is with the victim, and the command is protect them. In exception four it is with the wrongdoer, and the command is control them. Exception five is short. A safety statute or a contract can supply the duty. Now back to our swimmer. No relationship, no prior conduct, no undertaking, no statute. No duty.

Second world. Land. When someone is hurt by a condition on your property, how careful you had to be traditionally depended on why the visitor was there. Two systems exist and the exam expects both. The traditional approach sorts entrants into three boxes. The modern approach asks one question, did the possessor use reasonable care.

The traditional ladder. To an undiscovered trespasser you owe no ordinary care, only restraint. Do not injure willfully or wantonly, and do not maintain hidden traps. A spring gun rigged to the door is the classic violation. Once you know trespassers come, or should expect them, the duty rises to warning of known, concealed, artificial death traps.

Up a rung. A licensee enters with permission but for their own purposes, and the classic licensee is a social guest. Yes, the friend you invited to dinner is, in law, a mere licensee. Warn of concealed dangers you actually know about. You owe no duty to inspect. An invitee is a customer, or anyone on premises held open to the public, and there you owe reasonable care.

The inspection duty is the whole practical difference. Try one. You know the top basement stair is loose, say nothing, and your dinner guest falls. Liable? Yes, a concealed danger you knew about. Now a shopper slips on a spill in aisle six that nobody noticed. Liable? Also yes, because a store must hunt for that spill. A host need not audit the house.

Attractive nuisance, § 339, lets a trespassing child recover, and it takes five elements. The possessor knows children are likely to trespass there. The condition poses an unreasonable risk of serious injury. The child is too young to appreciate it. The burden of fixing it is slight against that risk. And the possessor fails to use reasonable care. The modern twist is that the child need not have been lured in.

Watch scope too. An invitee who wanders past the invitation, into the employees-only stockroom, can drop to licensee or trespasser there. And off the land you owe reasonable care as to artificial conditions threatening passersby, a loose sign over the sidewalk.

The modern approach trims all this. Many states merge licensees and invitees into one reasonable-care duty while keeping a lower duty to trespassers. Under § 51 and § 52, a possessor owes reasonable care to all entrants except flagrant trespassers, think burglars. Two footnotes. The firefighter's rule bars professional rescuers from suing over the very risks that summoned them. And a landlord who has parted with possession is generally out.

Third world. Emotional harm with no physical injury. Courts have always been nervous here, because emotional harm is easy to fake and hard to measure. So they fenced it in. There is no free-floating claim for hurt feelings. Three routes, and a good answer names the route before applying it.

Route one, the zone of danger, under § 47(a). If the defendant's negligence put you in immediate danger of bodily harm and you suffer serious distress, you recover though no impact ever landed. A driver runs a red light and misses Sara by inches, crushing the car behind her. Certain she was about to die, Sara develops panic attacks and a stress ulcer. Most states also require physical symptoms.

The second route is the bystander, under § 48. You were never in danger, but you watched a loved one be hurt. Three requirements. A close family relationship with the person injured. Contemporaneous perception, meaning you saw it happen rather than hearing of it after. And serious distress. A restrictive minority still demands the bystander also be in the zone of danger.

Route three is the one people miss, under § 47(b). In a few relationships and activities, serious emotional harm is so foreseeable that you recover with no danger and no witnessing at all. Mishandling a corpse. Negligently reporting that a family member has died. A hospital telephones Ravi to say his mother has died. She is alive and well. Ravi recovers, and he was never in any zone.

Fourth world, and the shortest. Money only. Suppose carelessness cost you profits but never touched your body or your property. Under § 1 of the Restatement on economic harm, there is no general duty to avoid carelessly causing purely financial loss. A contractor cuts a power line, and a factory two blocks away loses a day's production. Property untouched, so no recovery.

Two worries drive it. Financial harm ripples with no natural stopping point, and commercial parties can allocate these risks by contract. But the rule is not absolute. Negligent misrepresentation is the escape tested most, where a professional supplies false information for a limited, known group meant to rely on it. An independent duty works too, as an attorney owes a client.

A word on authorities, because this episode named no cases, and that was deliberate. NextGen questions hand you a fact pattern and ask what result the rule produces. They will not ask you for case names. Modern American duty law lives largely in the Restatement (Third) of Torts, and the numbers are the pegs worth carrying.

If you keep only three, keep these. § 37, no duty for a bare failure to act, because it is the default everything else is an exception to. § 40, a relationship with the victim, protect them. And § 41, a relationship with the dangerous person, control them. The exam blurs those two on purpose, so learn them as a pair.

Now the traps, straight from the examiners' favorites list. One. Moral duty is not legal duty. The strong swimmer owes nothing by default, so hunt for a specific exception. Two. The began-to-rescue switch. Once you start, no duty becomes reasonable care, and quitting can be worse than never starting.

Three. Innocent cause still counts. Creating a hazard at no fault triggers a duty to address it. Four. Social guests are licensees, not invitees, and only the invitee is owed an inspection. Five. Undiscovered trespassers get no ordinary care, but you still cannot set a trap. Six. Bystanders must perceive the event as it happens and be closely related.

And the deepest one. Answering the wrong duty question. Keep the four apart. Is this plaintiff foreseeable. Did the defendant merely fail to act. What does this entrant's status require. Is the harm emotional or purely financial. One fact pattern can raise several, so answer the question the call is asking.

Time for the quick check, straight from the BARGO question bank. In therapy sessions, a patient repeatedly tells his psychologist that he intends to kill his former girlfriend. He names her and describes where she works. The psychologist concludes the threat is genuine, but she neither warns the woman nor calls the police, citing patient confidentiality. Two weeks later the patient stabs her at work.

The family sues. What is their strongest theory that the psychologist owed the woman a duty? Option one. Confidentiality bars any therapist duty running to someone who is not the therapist's own patient. Option two. A therapist whose patient seriously threatens an identifiable victim must take reasonable protective steps. Option three. A therapist is strictly liable for every violent act a current patient commits. Pause here if you want a moment.

The answer is option two. A mental-health professional stands in a special relationship with a patient. The majority rule requires reasonable protective steps when the patient seriously threatens an identifiable victim. This one named his target and her workplace. Warn her, or notify the police. Option one treats confidentiality as an absolute bar, but the rule is precisely that danger to an identifiable third party overrides it.

Option three fails in the other direction. The duty is reasonable steps, not insurance against all patient violence. That difference between reasonable care and a guarantee runs through every exception in this episode. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Duty is a question of law for the judge, and no duty ends the case before breach is ever argued. Two. If your own conduct created the risk, you owe reasonable care to foreseeable plaintiffs. If you merely failed to act, the default is no duty.

Three. Five exceptions force you to act. A relationship with the victim, prior conduct that made the danger, a voluntary undertaking, a relationship with the dangerous person, and a statute or contract. Four. On land, classify the entrant or apply the modern standard, and the inspection duty belongs to invitees alone. Five. Emotional and money-only harms have their own narrow routes.

Which is why our swimmer can stand at the edge and owe nothing, and why one step into the water would have changed everything. Next time, Standard of Care and Negligence Per Se.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.