Negligence Torts: Duty


Adams v. Bullock

Reasonable Person

  • The “reasonable person” is the fictional standard by which courts determine if a person acted appropriately. It is most often defined as how a reasonable person of ordinary prudence with due regard for the safety of others would act in like circumstances.

  • "Ordinary prudence" means the person acted with normal or average caution. For example, if a child scrapes a knee while playing tag, one cannot claim the child should have been wearing knee pads, elbow pads, shoulder pads, a helmet, gloves, or any other protective gear if parents do not ordinarily require such protections for kids playing tag in that particular location.

  • "Due regard for the safety of others" means one is not required to be hyper-vigilant for any possible harm to others at all times. For instance, if you're cutting down a tree limb on a rarely used pathway and you first ensured nobody else was nearby and you placed cones to warn others not to come too close, you will not likely be found to have disregarded the safety of others if another person walking by with headphones in and looking at their phone happens to walk by right when the limb falls.

  • "Like circumstances" means people are to be assessed under the particular circumstances under which the alleged harm occurred. If you're running in a group from an erupting volcano and accidentally trip onto someone and they fracture their collarbone, you will likely be forgiven for the unintended harm because you'll have acted as a reasonable person of ordinary prudence with due regard for the safety of other sprinting from a national disaster in a jumble of people.

  • Finally, it's important to note that fact-based questions, like whether someone took “reasonable precautions,” is up to the fact-finder (jury).


A.W. v. Lancastor

Foreseeability for Negligence

There cannot be negligence if the harm was unintentional and unforeseeable.

  • Negligence is relational. Duty is limited to the danger zone, where it’s foreseeable someone could be injured.

  • As an example, one set of factors used by courts to determine foreseeability is known as the Rowland factors:

    (1)   Foreseeability and causality:

    (a) foreseeability of harm to the plaintiff

    (b) the degree of certainty that the plaintiff suffered injury

    (c) the closeness of the connection between the defendant’s conduct and the injury suffered

    (2)   Moral blame:

    (a) the moral blame attached to the defendant’s conduct

    (3)   Policy:

    (a) the policy of preventing future harm

    (b) the burden to defendant and consequences to the community

    (4)   Insurance: availability, cost, and prevalence of insurance


Harper v. Herman

Special Relationship

When there is a special relationship between two or more parties, then there may be a duty for one party to provide a certain standard of care of other parties.

For there to be a special relationship:

  1. The defendant must have had custody over the injured party, and

  2. The injured party must have been deprived of the opportunity for self-protection

Examples of when a special relationship has applied include:

  • Landlord-tenants

  • Common carrier-passengers

  • Innkeeper-guests

  • Employer-employee (employer must look out for employee safety)

  • School-students

Christensen v. Swenson

Respondeat Superior

This doctrine holds the employer responsible for the negligent actions of an employee. One test applies the doctrine if the tortious act occurs:

  1. Through the general type of activity, the employee was hired to perform

  2. Within the hours and spatial boundaries of the work

  3. Because the action was motivated by purpose of serving employer’s interest

The doctrine applies as vicarious liability against anyone who had control over someone else (a parent over their kid when the kid causes damage, for example)

Also look for:

  • If negligent person was vulnerable and dependent on the other person,

  • If the other person had power over the welfare of the negligent person,

  • If person has economic advantage over the negligent person,

  • And/or if the negligent person expected the other person to look out for him

Tarasoff v. Regents of the University of California

Duty to Warn

There are occasions when a reasonable person has a duty to warn others. An obvious one would be for a scientist to warn if a deadly virus has somehow escaped the lab.

Randi W v. Muroc

Duty to Not Make Fraudulent or Negligent Misrepresentation

While omissions are more tolerated by courts, people generally should not affirmatively state fraudulent or negligent misrepresentations.

Trimarco v. Klein


Custom refers to what is customary for reasonable people to do. For example, it is customary for football players to wear pads. If a coach insisted his players not wear any protection at practice and a student was injured, the coach may be found liable for the injury.

The fact-finder can determine whether there was negligence by asking:

  • Is there an actual custom? For example, is there a custom regarding safety precautions?

  • Is the custom reasonable?

  • By not conforming to custom, did the defendant directly contribute to the injury?

Note: Evidence of a customary practice is not dispositive, but it is indicative. This means the coach in the example above will not always be liable. Perhaps they didn't use pads in practice because the players weren't supposed to physically contact one another, for instance, and that’s a typical way to practice.

Farwell v. Keaton


The doctrine of co-venturers means people may be held liable for injuries sustained by their compatriots when out and about if certain conditions are met.

Some questions to consider include:

  •  Did the defendant know the plaintiff was in danger?

  •  Could the defendant help without causing harm to himself?

 Attempting to Aid – Misfeasance

R2d Torts § 324

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself, is subject to liability to the other for any bodily harm caused to him by

            (a) the failure to exercise reasonable care to secure the other’s safety, or

            (b) the actor discontinuing aid and leaves him in a worse position.

R2d Torts § 43

Actor must exercise reasonable care in discontinuing aid for someone who reasonable appears to be in imminent peril.

Posecai v. Wal-Mart


Under some circumstances, businesses have a duty to look out for the well-being of its patrons.

There are a few ways courts have a placed a duty on businesses. One such method is the Balancing Test:

  1. Foreseeability and gravity v. burden (Note: The Balancing Test depends more heavily on existence of prior incidents)

  2. Foreseeability and gravity factors:

    1. prior incidents (PRIMARY)

    2. location

    3. nature of the property

U.S. v. Carroll Towing Co.

Calculus of Risk

Some courts apply what amounts to a social science formula to determine whether anyone had a duty.

One example is the Learned Hand Calculus:

If taking reasonable precautions is less burdensome (B) than the probability of harm (P) times the severity of damage if it occurs (L), then you have a duty to take those precautions

Tedla v. Ellman

Statutes and Regulations Designed to Protect People (Safety Statutes)

Generally, people must follow the law. However, there are exceptions, such as when following the law would increase the odds of sustaining an injury.

  • Does common law duty exist?

  • Did someone violate a statute to protect a class of individuals (which includes defendant)?

  • Was injury of the type it sought to prevent?

However, a statute that merely articulates a general rule of conduct (i.e. not a “safety statute”) does not create a per se standard. This is especially true if they have some excuse for why the alternative was safer. Think of Tedla v. Ellman (traffic efficiency statute v. safety statute).

Heath v. Swift Wings


Professionals are generally held to the minimal objective standard for their profession. Duty is not based on each individual’s abilities and experiences.

Brigance v. Velvet Dove Restaurant

Serving the Intoxicated

One who sells intoxicating beverages for on-the-premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person.

Cordas v. Peerless Transportation


As stated in Cordas v. Peerless Transp. Co., “If under normal circumstances an act is done which might be considered negligent it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own making, in which he suddenly is faced with a patent danger with a moment left to adopt a means of extrication.”

  • The standard in emergencies is how a reasonable person would act in such an emergency as long as the emergency isn’t of one’s own negligence. It must be unforeseen and sudden.