15 Duty As a Function of Foreseeability (Socratic Script)

The general rule of duty depends on foreseeability. Where harms are foreseeable, both moral and legal notions suggest that it is proper to prevent them unless the costs or risks of doing so outweigh the costs or risks of not doing so. Efficiency, fairness, deterrence and compensation are all powerful rationales for pinning duty to foreseeability—in theory. In practice, determining what is foreseeable has commonly been an exercise in judicial policymaking with lines drawn that sometimes seem coherent and principled and other times seem outcome-driven or poorly reasoned.

Foreseeability has often played a role in constricting the scope of liability but it expanded the scope of duty with respect to landlord liability. Were landlords liable to their tenants and their guests, when third parties committed crimes for which the landlords were not directly responsible? The common law answer was no, reflecting the default to “no duty.” However, a landmark case in 1970, Kline v. 1500 Massachusetts Ave., signaled courts growing willingness to shifting toward finding a duty in some cases of landlord responsibilities to prevent third-party crimes. The following case also provides a helpful overview of the changing notions of duty over time.

Note: The case mentions a sexual assault in the background of the fact pattern but does not dwell on or recount it beyond that.

Walls v. Oxford Management Co., Inc., Supreme Court of New Hampshire (1993)
(137 N.H. 653)

[The legal question is: Does New Hampshire law impose a duty on landlords to provide security to protect tenants from the criminal attacks of third persons?]

On December 13, 1988, the plaintiff, Deanna Walls, was sexually assaulted in her vehicle, which was parked on the premises of the Bay Ridge Apartment Complex in Nashua. The plaintiff lived with her mother, who leased an apartment at Bay Ridge. Gerard Buckley was arrested and subsequently convicted of sexually assaulting the plaintiff. Bay Ridge is owned by defendant Nashua–Oxford Bay Associates Limited Partnership (Nashua–Oxford), and managed by defendant Oxford Management Company, Inc. (Oxford). It consists of 412 apartments located in fourteen buildings. During the two years prior to the assault, the Bay Ridge complex had been the site of a number of crimes directed against property, including eleven automobile thefts, three attempted automobile thefts, and thirty-one incidents involving criminal mischief/theft. No sexual assaults or similar attacks against persons had been reported.

The plaintiff brought this action in federal court, charging that the defendants “had a duty to hire and contract with a competent management company, had a duty to provide reasonable security measures for the protection of residents of Bay Ridge, a duty to warn residents of its lack of security, as well as a duty to warn residents of the numerous criminal activities which had taken place on the premises of Bay Ridge and in the vicinity of Bay Ridge.”

The plaintiff alleges that the defendants breached these duties, and that the breach was a proximate cause of the sexual assault. *656

1. Landlord’s Duty to Secure Tenants Against Criminal Attack

The issues raised by the first question [before] the court at the confluence of two seemingly contradictory principles of law. On one hand lies the accepted maxim that all persons, including landlords, have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm. See Sargent v. Ross, 113 N.H. 388, 391 (1973). On the other hand, a competing rule holds that private persons have no general duty to protect others from the criminal acts of third persons. See Restatement (Second) Of Torts § 314 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 33, at 201 (5th ed. 1984).

Claims for negligence “rest primarily upon a violation of some duty owed by the offender to the injured party.” [c] Absent a duty, there is no negligence. Whether a duty exists in a particular case is a question of law. [cc] Only after a court has determined that a defendant owed a plaintiff a duty, and identified the standard of care imposed by that duty, may a jury consider the separate question of whether the defendant breached that duty. [c]

While of paramount importance to the analysis of a claim for negligence, duty “is an exceedingly artificial concept.” Libbey v. Hampton Water Works Co., 118 N.H. 500, 502, (1978). In some cases, a party’s actions give rise to a duty. [c] A party who does not otherwise have a duty, but who voluntarily renders services for another, has been held to a duty of reasonable care in acting. [c] Restatement (Second) Of Torts, supra §§ 323, 324. In other cases, a duty to act exists based on a special relationship between two parties. [c] In either case, the scope of the duty imposed is limited by what risks, if any, are reasonably foreseeable. [c] As a general rule, “a defendant will not be held liable for negligence if he could not reasonably foresee that his conduct would result in an injury or if his conduct was reasonable in light of what he could anticipate.”

*657 When charged with determining whether a duty exists in a particular case, we necessarily encounter the broader, more fundamental question of “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” Libbey, 118 N.H. at 502 (quotation omitted). The decision to impose liability ultimately rests on “a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability.” Libbey, 118 N.H. at 502. See generally Keeton, supra § 54, at 358 (duty not sacrosanct in itself, but only expression of sum total of policy considerations).

At one time, landlords enjoyed considerable immunity from “simple rules of reasonable conduct which govern other persons in their daily activities.” Sargent, 113 N.H. at 391. A landlord owed no general duty to his tenants, and could be found liable for injuries caused by a defective or dangerous condition on leased property only if the injuries were “attributable to (1) a hidden danger in the premises of which the landlord but not the tenant [was] aware, (2) premises leased for public use, (3) premises retained under the landlord’s control, such as common stairways, or (4) premises negligently repaired by the landlord.” Id. at 392. In Sargent, however, this court abolished landlord immunity, and held that a landlord has a duty to act as a reasonable person under all the circumstances. Id. at 397. We acknowledged that “[c]onsiderations of human safety within an urban community dictate that the landowner’s relative immunity, which is primarily supported by values of the agrarian past, be modified in favor of negligence principles of landowner liability.” Id. at 396 (quotation omitted).

While we can state without reservation that landlords owe a general duty of reasonable care to their tenants, our efforts at resolving the first question presented are complicated by the competing common law rule that private citizens ordinarily have no duty to protect others from criminal attacks. See generally Restatement (Second) of Torts, supra § 314; Keeton, supra § 33, at 201; Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970). This rule is grounded in the fundamental unfairness of holding private citizens responsible for the unanticipated criminal acts of third parties. “Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the *658 law…. Although [crimes] do occur … they are still so unlikely that the burden of taking continual precautions against them almost always exceeds the apparent risk.” Keeton, supra § 33, at 201. In keeping with this rule, courts have largely refused to hold landlords to a general duty to protect tenants from criminal attack. [c]

We agree that as a general principle, landlords have no duty to protect tenants from criminal attack. Without question, there is much to be gained from efforts at curtailing criminal activity. Yet, we will not place on landlords the burden of insuring their tenants against harm from criminal attacks.

Our inquiry is not concluded, however, as we must further consider whether exceptions to the general rule against holding individuals liable for the criminal attacks of others apply to the landlord-tenant relationship. A review of the law in this area suggests four such exceptions. The first arises when a special relationship, such as that of innkeeper-guest, or common carrier-passenger, exists between the parties. See Restatement (Second) of Torts, supra § 314A. Courts have repeatedly held, however, that a landlord-tenant relationship is not a special relationship engendering a duty on the part of the landlord to protect tenants from criminal attack. [cc] But see Kline v. 1500 Massachusetts Avenue, 439 F.2d at 485 (finding landlord-tenant relationship analogous to that of innkeeper-guest).

A second exception arises where “an especial temptation and opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it.” Keeton, supra § 33, at 201 (emphasis added). This exception follows from the rule that a party who realizes or should realize that his conduct has created a condition which involves an unreasonable risk of harm to another has a duty to exercise reasonable care to prevent the risk from taking effect. Restatement (Second) of Torts, supra § 321; see also Restatement (Second) of Torts, supra § 448 (criminal act of third person is superseding cause of harm to another unless defendant could have foreseen that his negligent conduct increased risk of crime). Accordingly, in the majority of cases in which a landlord has *659 been held liable for a criminal attack upon a tenant, a known physical defect on the premises foreseeably enhanced the risk of that attack. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368, 377, 381 (1975) (defective deadbolt on apartment door); Aaron, 758 S.W.2d at 446 (broken window latch); Duncavage v. Allen, 147 Ill.App.3d 88 (1986) (inoperable lighting; ladder left unattended near unlocked window).

A third exception is the existence of overriding foreseeability. Some courts have held landlords to a duty to protect tenants from criminal attacks that were clearly foreseeable, even if not causally related to physical defects on the premises. See, e.g., Trentacost v. Brussel, 82 N.J. 214, 218 (1980) (criminal activity apparent in plaintiff’s neighborhood); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, 100 (Fla.App.1980) (apartment complex plagued by high incidence of serious crime); Kline v. 1500 Massachusetts Avenue, 439 F.2d at 483 (crimes perpetrated against tenants in common area of apartment complex); Johnston v. Harris, 387 Mich. 569, 573–74 (1972); Faheen By Hebron v. City Parking Corp., 734 S.W.2d 270, 273 (Mo.App.1987).

The fourth exception derives from the general tort principle that one who voluntarily assumes a duty thereafter has a duty to act with reasonable care. See Restatement (Second) of Torts, supra §§ 323, 324. Thus, landlords who gratuitously or contractually provide security have been found liable for removing the security in the face of a foreseeable criminal threat. [cc]

We hold that while landlords have no general duty to protect tenants from criminal attack, such a duty may arise when a landlord has created, or is responsible for, a known defective condition on a premises that foreseeably enhanced the risk of criminal attack. Moreover, a landlord who undertakes, either gratuitously or by contract, to provide security will thereafter have a duty to act with reasonable care. Where, however, a landlord has made no affirmative attempt to provide security, and is not responsible for a physical defect that enhances the risk of crime, we will not find such a duty. We reject liability based solely on the landlord-tenant relationship or on a doctrine of overriding foreseeability.

A finding that an approved exception applies is not dispositive of the landlord’s liability for a tenant’s injury. Where a landlord’s duty is premised on a defective condition that has foreseeably enhanced the risk of criminal attack, the question whether the defect *660 was a proximate or legal cause of the tenant’s injury remains one of fact. Moreover, where a landlord has voluntarily assumed a duty to provide some degree of security, this duty is limited by the extent of the undertaking. [c] Rowe, 125 Ill.2d at 218–19, 126 Ill. Dec. at 526. For example, a landlord who provides lighting for the exterior of an apartment building might be held liable for failing to insure that the lighting functioned properly, but not for failing to provide additional security measures such as patrol services or protective fencing.

The answer to the [***] question is no, subject to the pleading or proof, as appropriate, of facts supporting the approved exceptions.

Remanded.

Note 1. Revisiting the purposes of tort law—fairness, compensation, deterrence, efficiency and social justice—which of these are served (and disserved) by attaching tort liability to landlords for third-party criminal attacks suffered by their tenants?

Note 2. Whom does a blanket rule on this issue serve best? If tort liability does not attach to landlords for third-party criminal activity, what other incentives do landlords have to make their property safer for the benefit of their tenants? Do you think they are as effective as those that tort law ordinarily attempts to create? What are the effects, for tenants, of expanding the liability of landlords?

Tarasoff v. Regents of the University of California is that rare case that many non-lawyers recognize (and may fear). In the fields of medicine, psychology and social work, the case is routinely taught because of its impact on the duties of those who become aware of credible risks to specific third parties. The case surprised many by finding there was a duty on the part of a therapist to warn a specific third party who was not his client, even though that meant violating client confidentiality and even though he had no other relationship with that third party. His client, Prosenjit Poddar, had threatened harm to a young woman, Tatiana Tarasoff, and Poddar ultimately killed her. There is a troubling dynamic present in the case, of a mentally unstable young man who, in response to rejection by a female student, acts out his feelings in deadly violence. As you read, keep in mind what sorts of expectations the parties involved in such a scenario may have and try to imagine the impact of any alternative ruling the court could have handed down.

Tarasoff v. Regents of the University of California, Supreme Court of California (1976)
(551 P.2d 334)

On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana’s parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. They allege that on Moore’s request, the campus police briefly detained Poddar, but released him when he appeared rational. They further claim that Dr. Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana’s peril.

Concluding that these facts set forth causes of action against neither therapists and policemen involved, nor against the Regents of the University of California as their employer, the superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without leave to amend. This appeal ensued.

Plaintiffs’ complaints predicate liability on… defendants’ failure to warn plaintiffs of the impending danger…. Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana. The most important …consideration … in establishing duty is foreseeability. As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ …

Although … under the common law, as a general rule, one person owed no duty to control the conduct of another nor to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Applying this exception to the present case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either ‘(a) a special relation … between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation … between the actor and the other which gives to the other a right of protection.’

Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. A doctor must also warn a patient if the patient’s condition or medication renders certain conduct, such as driving a car, dangerous to others. …

Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. [***]

We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise’ that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of (that professional specialty) under similar circumstances.’ …In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn. …Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist’s duty to protect the threatened victim.

The risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. We would hesitate to hold that the therapist who is aware that his patient expects to attempt to assassinate the President of the United States would not be obligated to warn the authorities because the therapist cannot predict with accuracy that his patient will commit the crime. …

The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to him in the course of medical attendance … [u]nless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.” We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. [***]

The judgment of the superior court in favor of defendants … is reversed, and the cause remanded for further proceedings consistent with the views expressed herein.

Note 1. Tarasoff provides the rule that “The protective privilege ends where the public peril begins.” Do you think it is clear to therapists when that public peril begins? What sorts of methods, or evidence, do you imagine being helpful to that determination?

Note 2. What are the risks of placing the determination of “public peril” with a therapist? If a therapist did warn the third party and it caused worse harm, perhaps because the patient learned about it, or for other reasons, would the Tarasoff duty have been satisfied or breached? If a therapist were sufficiently concerned to warn a third party, should the duty also extend to warning the police? What about to family members of the therapist’s clients? Are there implications for the no-duty doctrine of receiving Tarasoff warnings from therapists?

Note 3. The Tarasoff rule has been limited in some cases (to specific or “identifiable victims”) and in some states, it has expressly been rejected (with such states reaffirming on the grounds of the no duty/special relationship rules that therapists have no duty to third-party victims). Before this case, the general rule was clear: there was no duty to warn arising out of the therapeutic relationship. On the contrary, there were professional norms and legal obligations of confidentiality to the patient. As discussed in the introduction to this section, the court uses the term “affirmative” to refer to duties against the backdrop of that “no-duty” common law default: “Such a relationship may support affirmative duties for the benefit of third persons.” It does so partly to announce a change in the law. Indeed, despite finding that there was no special relationship here that would ordinarily “ground” (or give rise to) a duty, the court finds one on the basis of foreseeability. “The most important …consideration … in establishing duty is foreseeability”; “a ‘defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’”

Tarasoff presents the unusual case in which a court makes a sharp change on the basis of particular facts and policy rationales, and then subsequent courts, legislators, and the professional or other entities affected by the ruling must make decisions to adopt, reject, respond in some other fashion or ignore the case. It is rare that a major ruling and a sudden significant change will be completely ignored, however. What changes would you recommend in a jurisdiction that had not yet adopted Tarasoff, and why?

One of the most famous cases you will read in law school, Palsgraf v. Long Island Railroad, concerns the scope of duty owed to an injured person whose injury you might not anticipate or be able to foresee. It is often taught as a case about proximate cause—which is how the dissent frames the issue—but in fact the opinion concerns the scope of responsibility to an unforeseeable victim and the holding is framed in terms of duty.

Palsgraf v. Long Island R. Co., Court of Appeals of New York (1928)
(248 N.Y. 339) Justice Cardozo

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help *341 him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock, Torts (11th Ed.) p. 455; Martin v. Herzog, 228 N. Y. 164, 170, Cf. Salmond, Torts (6th Ed.) p. 24. ‘Negligence is the absence of care, according to the circumstances.’ [c]

The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. *342 If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. ‘In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.’ [cc] The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise *343 which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed.

In this case, the rights that are said to have been violated, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. It there was a wrong to him at all, which may very well be doubted it was a wrong to a property interest only, the safety of his package.

Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to someone else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

The argument for the plaintiff is built upon the shifting meanings of such words as ‘wrong’ and ‘wrongful,’ and shares their instability. What the plaintiff must *344 show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. [cc]

This does not mean, of course, that one who launches a destructive force is always relieved of liability, if the force, though known to be destructive, pursues an unexpected path. ‘It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ [Citations omitted] Some acts, such as shooting are so imminently dangerous to any one who may come within reach of the missile however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even to-day, and much oftener in earlier stages of the law, one acts sometimes at one’s peril. [cc] Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B. Talmage v. Smith, 101 Mich. 370, 374 *345 These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional. Parrot v. Wells-Fargo Co. (The Nitro-Glycerine Case) 15 Wall. 524, 21 L. Ed. 206. The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury.

Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. [c] Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. [***] Confirmation of this view will be found in the history and development of the action on the case.

Negligence as a basis of civil liability was unknown to mediaeval law. 8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, *346 pp. 189, 190. For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal. [***] Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth. [cc] When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case. [cc] The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime. Holland, Jurisprudence (12th Ed.) p. 328. He sues for breach of a duty owing to himself.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary [cc] There is room for *347 argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

ANDREWS, J. (dissenting).

Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling, they injured the plaintiff, an intending passenger.

Upon these facts, may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept—the breach of some duty owing to a particular person or to particular persons? Or, where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis, *348 we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect one’s self from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word ‘unreasonable.’ For present purposes it sufficiently describes that average of conduct that society requires of its members.

There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. [c] In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice—not one merely reckless conduct. But here neither insanity nor infancy lessens responsibility. [c] As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. [c] Where a railroad is required to fence its tracks against cattle, no man’s rights are injured should he wander upon the road because such fence is absent. [c] An unborn child may not demand immunity from personal harm. [c]

But we are told that ‘there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff *349 himself and not merely to others.’ Salmond Torts (6th Ed.) 24. This I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger, but to all who might have been there—a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. [c] As was said by Mr. Justice Holmes many years ago:

‘The measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another,’ Spade v. Lynn & B. R. Co., 172 Mass. 488, 491, (43 L. R. A. 832, 70 Am. St. Rep. 298).

Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone. It may well be that there is no such thing as negligence in the abstract. ‘Proof of negligence in the air, so to speak, will not do.’ In an empty world negligence would not exist. It does involve a relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene.

We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for *350 the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife, or insured will prevent recovery, it is because we consider the original negligence, not the proximate cause of the injury. Pollock, Torts (12th Ed.) 463.

In the well-known Polemis Case, [1921] 3 K. B. 560, Scrutton, L. J., said that the dropping of a plank was negligent, for it might injure ‘workman or cargo or ship.’ Because of either possibility, the owner of the vessel was to be made good for his loss. The act being wrongful, the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. [***]

The proposition is this: Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm, might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining, but this is not a duty to a particular individual because as to him harm might be expected. Harm to someone being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio Case we said that a breach of a *351 general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to everyone. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

If this be so, we do not have a plaintiff suing by ‘derivation or succession.’ Her action is original and primary. Her claim is for a breach of duty to herself—not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property downstream. We are not liable if all this happened because of some reason other than the insecure foundation. But, when injuries do result from out unlawful act, we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen, and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former. These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or, if you please, a net. An analogy is of little aid. *352 Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last inevitably no trace of separation remains. They are so commingled that all distinction is lost. As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Sarajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.

A cause, but not the proximate cause. What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were *353 simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration: A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent. But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C’s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby, is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing—may have some bearing, for the problem *354 of proximate cause is not to be solved by any one consideration. It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of ‘the stream of events.’ We have asked whether that stream was deflected—whether it was forced into new and unexpected channels. [***] This is rather rhetoric than law. There is in truth little to guide us other than common sense.

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. [c] Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned, the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration—the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can. Once again, it is all a question of fair judgment, always *355 keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.

Here another question must be answered. In the case supposed, it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion, although he had no reason to suppose it would follow a collision. ‘The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur’s negligence from being in law the cause of the injury.’ But the natural results of a negligent act—the results which a prudent man would or should foresee—do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.

It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences, not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

This last suggestion is the factor which must determine the case before us. The act upon which defendant’s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger’s foot, then to him; if it exploded *356 and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently 25 or 30 feet, perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief, ‘It cannot be denied that the explosion was the direct cause of the plaintiff’s injuries.’ So it was a substantial factor in producing the result—there was here a natural and continuous sequence—direct connection. The only intervening cause was that, instead of blowing her to the ground, the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here, it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

The judgment appealed from should be affirmed, with costs.

Note 1. You know it’s a famous case when there’s a Lego dramatization. You might appreciate this 5:24 minute Lego-figure parody and recreation of the facts and trial of Palsgraf (but beware that it takes liberties such as including an anachronistic TSA interview and televisual exhibit in the courtroom). It’s available here (full link: https://www.youtube.com/watch?v=mDEbTudkjhc)

Note 2. Palsgraf may be famous because of the oddly vivid facts, the socioeconomic context and the elevated language and reasoning of the majority and dissenting opinions by Justice Cardozo and Justice Andrews, respectively. These two justices are extremely well-respected for their analytic craft, especially Justice Cardozo, who would go on to become one of the most well-respected justices of the century (and a renowned expert on tort law). But it was also an important opinion because it featured a dispute over where in the negligence action the scope of the tort was to be defined—at the duty stage, as a matter of law for the judge, or at the later proximate cause stage, as a question of fact for the jury. The two justices are both trying to answer the same normative question: Should the court hold the defendant liable to this plaintiff? Given that, why might it matter whether a case like Palsgraf is decided by a judge versus a jury?

Note 3. If “foreseeability” is the driving consideration behind duty (and plays a role in many analyses of proximate cause), it ought to be a principle that can be conceptualized in terms of tort law’s purposes. How well does it serve compensation, deterrence, efficiency, fairness and social justice? What sorts of consequences do you imagine an emphasis on foreseeability could produce in the real world in terms of parties’ behavior and choices?

Duties Determined by Relationship or Undertaking

Harper v. Herman, Supreme Court of Minnesota (1993)
(499 N.W.2d 472)

This case arises upon a reversal by the court of appeals of summary judgment in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.

The facts are undisputed for the purpose of this appeal. On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26–foot boat, sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer, another guest on Herman’s boat. Herman and Harper did not know each other prior to this boat outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka similar to the one involved in this action. As owner of the boat, Herman considered himself to be in charge of the boat and his passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in diving.

After a few hours of boating, the group decided to go swimming and, at Herman’s suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the water remains shallow for a good distance away from its shore. Harper had been to Big Island on one previous occasion. Herman positioned the boat somewhere between 100 to 200 yards from the island with the bow facing away from the island in an area shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so they could swim.^[1] The bottom of the lake was not visible from the *474 boat. After positioning the boat Herman proceeded to set the anchor and lower the boat’s ladder which was at its stern.

While Herman was lowering the ladder, Harper asked him if he was “going in.” When Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.

Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. On October 23, 1991, the trial court granted Herman’s motion for summary judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when he allowed Harper onto his boat, and that the duty of care included warning Harper not to dive because he knew that the water was “dangerously shallow.” Harper v. Herman, 487 N.W.2d 908, 910 (Minn.App.1992). [***]

Harper alleges that Herman owed him a duty to warn of the shallowness of the water because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those circumstances, Harper argues, Herman should have realized that Harper needed his protection.

We have previously stated that an affirmative duty to act only arises when a special relationship exists between the parties. “The fact that an actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action * * * unless a special relationship exists * * * between the actor and the other which gives the other the right to protection.” [c] Accepting, arguendo, that Herman should have realized that Harper needed protection, Harper must still prove that a special relationship existed between them that placed an affirmative duty to act on the part of Herman.

Harper argues that a special relationship requiring Herman to act for his protection was created when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. Restatement (Second) of Torts § 314A (1965). Under this rule, a special relationship could be found to exist between the parties only if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself.^[2] These elements are not present here.

The record before this court does not establish that Harper was either particularly vulnerable or that he lacked the ability to protect himself. Further, the record does not establish that Herman held considerable power over Harper’s welfare, or that Herman was receiving a financial gain by hosting Harper on his boat. Finally, there is nothing in the record which would suggest that Harper expected any protection *475 from Herman; indeed, no such allegation has been made.

The court of appeals found that Herman owed Harper a duty to warn him of the shallowness of the water because Herman knew that it was “dangerously shallow.” We have previously stated that “[a]ctual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.” [***] However, superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. Thus, Herman’s knowledge that the water was “dangerously shallow” without more does not create liability. [***] Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.

“There are many dangers, such as those of fire and water, * * * which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child * * *.” Restatement (Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the inherent dangers of water, so should a 20–year–old adult. Harper had no reasonable expectation to look to Herman for protection, and we hold that Herman had no duty to warn Harper that the water was shallow.

Reversed and judgment in favor of defendant reinstated.

Note 1. Does the court’s ruling rest primarily on the plaintiff’s expectations and capacity or the defendant’s obligations? To what extent can those be uncoupled? Should it matter whether the boat’s owner invited the guest directly (as he did not, in this case)?

Note 2. What facts would you add if you were seeking to convert this fact pattern into one in which Herman did owe Harper a duty on the basis of a special relationship?

Sidwell v. McVay Supreme Court of Oklahoma (1955)
(282 P.2d 756)

Tony Wayne Sidwell, a sixteen year old boy, as plaintiff brought this action by and through his mother and next friend, Ava Jane Sidwell, against W. F. Peterson III and Mickey McVay, two other boys about the same age, and against Ralph H. McVay and Myra E. McVay, the parents of the latter, all as defendants to recover damages for personal injuries resulting from a fireworks explosion. The parties will be referred to as they appeared in the trial court.

The question here presented is whether or not the trial court was correct in sustaining demurrers to plaintiff’s evidence and dismissing the action. On the morning of July 4, 1952 at about 9:00 o’clock, the *758 defendant Mickey McVay drove by the home of plaintiff in the McVay family automobile. The two boys then drove to the McVay home where they got with the Peterson boy. For several years the three had been close school chums. They then drove to a fireworks retail sales stand where they pooled their money and bought a gross of firecrackers known as ‘cherry bombs.’ They returned to the McVay home where, in the breakfast room thereof and with kitchen knives, they opened about sixty or seventy of the firecrackers and removed the gunpowder totaling about one half teacupful. From the garage or shed, they got a short piece of metal pipe with a cap screwed on one end. They used a hammer and punch to make a small hole in the middle of the pipe, in which to insert the fuse. They poured the powder into the pipe and stuffed pieces of paper in the open end. Unable to locate another cap for the pipe, the plaintiff laid the pipe on the concrete floor or driveway of the garage and began trying to beat the open end of the pipe together with a hammer. The other two boys were frightened and moved back to a safe distance. After plaintiff had hammered on the pipe for several minutes, the contraption exploded blowing off his left hand.

During the time the boys were removing the powder from the ‘cherry bombs,’ both Mr. and Mrs. McVay came through the kitchen several times, the latter admonishing them about making a mess in the breakfast room. While the plaintiff was hammering on the pipe, Mr. McVay came out of the house and got into his car. He noticed what the boys were doing and told them to get back away from the shed or they would burn it up. About a year previously the boys had made two similar bombs from aluminum pipe and Mr. McVay had driven them to a lake near the city limits to shoot them. At about that same previous time, the plaintiff and his younger brother and possibly the McVay boy had constructed a similar bomb and had exploded it outside the city limits.

[***] [On appeal, plaintiff’s] position is:

‘It was the duty of the defendants as the owners and operators of the premises to either take the dangerous ingredients away from the plaintiff, or to require him to get off of the premises before going ahead with the assembly of their various materials into the dangerous product, or, to warn plaintiff of the danger connected with what he was doing.’

With this contention, we do not agree. [***] Here the plaintiff was not attracted to the McVay home nor was he injured by any condition thereon. He was injured as a result of his own acts upon the dangerous instrumentality, the gunpowder, which the plaintiff himself had assisted in bringing onto the premises. The plaintiff was a sixteen year old boy with an alert mind and a past experience with the dangerous substance. The attractive nuisance doctrine had no application. The following statement in the case of Keck v. Woodring, 201 Okl. 665 is particularly applicable here:

‘Whether the child was of an age and capacity to understand and avoid danger is usually a question for the jury, but it may be stated as a settled rule in this state that after the age of fourteen all minors are prima facie presumed to be capable of the exercise of judgment and discretion. Plaintiff being over the age of fourteen, and there being no evidence of lack of capacity, but, on the contrary, there being evidence that plaintiff was of advanced intelligence, the trial court should have held as a matter of law that the rule of attractive nuisance could not be invoked.’

Citation of authority is unnecessary to support the rule that in order for *759 plaintiff to recover in an action founded upon negligence, proof must be made of the essential elements; that defendant had duty to protect injured person from injury; that defendant failed to perform that duty, and that such failure was proximate cause of injury. The lack of proof of any one of these elements is fatal to the action. In the case before us there is a complete absence of proof of any duty to plaintiff owed by any of the defendants. Even though the means had been at hand to stop plaintiff from hammering the pipe, none of the defendants was obligated to do so.

‘As a general rule, the law imposes no duty on one person actively to assist in the preservation of the person or property of another from injury, even though the means by which harm can be averted are in his possession. The law does not undertake to make men render active service to their neighbors at all times when a good or brave man would do so.

‘Those duties which are dictated merely by good morals, or by humane considerations, are not within the domain of the law.’ 38 Am.Jur. 658, Negligence sec. 16.

The last quoted rule is also applicable to the minor defendants, McVay and Peterson. None of the evidence tended to establish a duty due from them to plaintiff nor any breach of duty. There was testimony that these latter defendants, as they were seeking a place of safety, tried to get plaintiff to stop hammering on the bomb. Since, however, the plaintiff denied it and the matter was presented on demurrer, there was no proof that they sanctioned or encouraged the dangerous acts.

Plaintiff’s evidence wholly failed to establish any of the essentials above enumerated entitling him to recover. [***] Therefore, the trial court committed no error in sustaining the several demurrers to the evidence of plaintiff.

The judgment is affirmed.

Note 1. How important do you think the boys’ age and gender were to this case? Do you think contemporary parenting models might prompt different analysis from a court today?

Note 2. No Duty to Rescue. Sidwell reinforces the general proposition that there is no duty to rescue in American tort law. That is, there is no duty to take affirmative steps to help or “rescue” another who faces a risk or harms you did not create through your negligence or contribute to increasing. “rescue” does not mean only traditional rescues such as helping someone out of a difficult spot in the moment when it is happening, but more broadly, the undertaking of steps to assist or warn the injured or vulnerable, more generally. Tort law does not require taking action to help someone unless you have a special relationship or contract or fall into one of the exceptions or categories in which specific duties are articulated. Even then, expect to see rulings of “no duty” in many cases where some duty might be owed to some people, at some times. Consider that in Harper the victim was a guest on the defendant’s boat but that social relationship alone and the boat’s ownership did not give rise to a duty to warn; in Sidwell, although the boys were friends and all involved in experimenting with the explosives to some extent, their joint efforts were not enough to give rise to a duty to interfere with or impede the plaintiff from his own decisions to hammer the pipe bomb.

Note 3. Policy Considerations Underpinning the No Duty to Rescue Rule. “With a few exceptions, the general rule in American tort law is that bystanders will not be liable to a victim for their failure to affirmatively aid. There is, in other words, no general duty to reasonably rescue in American law. This feature of American tort law differs markedly from the legal treatment of the same issue in other parts of the world where legal obligations to affirmatively aid another in peril are common. It stands also in striking contrast to most conventional views of common decency and morality. [But] a full understanding of the no-duty-to-rescue doctrine begins with an appreciation that it is less an affirmative assertion of preferred behavior and outcomes than a tenet of tort law not to extend the usual regulatory pressures of negligence into this particular nook of human judgment.” Marin Roger Scordato, Understanding the Absence of A Duty to Reasonably Rescue in American Tort Law, 82 Tul. L. Rev. 1447, 1452 (2008)

Scordato argues that it would impose considerable costs on society to impose a general duty to rescue, and he contrasts such a general duty to rescue with a more limited duty that could be imposed on those with expertise in related areas. Others have explored the philosophical implications of retaining the no-duty rule or abandoning it, and there have been spirited defenses of it as a mechanism that reflects tort law’s concern with efficiency. See William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83, 119-27 (1978) (arguing, in part, that would-be rescuers will avoid morally worthy attempts to rescue if liability for doing or not doing so exists). Still others have argued the opposite, advocating in favor of a liability rule. See Richard L. Hasen, The Efficient Duty to Rescue, 15 Int’l Rev. L. & Econ. 141, 147 (1995).

Is this an area of law in which making a choice based on efficiency seems advisable to you? Why or why not? What philosophical perspective do you think the law should adopt?

Farwell v. Keaton, Supreme Court of Michigan (1976)
(396 Mich. 281)

There is ample evidence to support the jury determination that David Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence was the proximate cause of Farwell’s death. We are also of the opinion that Siegrist, who was with Farwell the evening he was fatally injured and, as the jury found, knew or should have known of his peril, had an affirmative duty to come to Farwell’s aid.^[3]

On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to return an automobile which Siegrist had borrowed from a friend who worked there. While waiting for the friend to finish work, Siegrist and Farwell consumed some beer. Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage them in conversation; they left Farwell’s car and followed the girls to a drivein restaurant down the street. The girls complained to their friends in the restaurant that they were being followed. Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the car the next morning and took him to the hospital. He died three days later of an epidural hematoma.

At trial, plaintiff contended that had Siegrist taken Farwell to the hospital, or had he notified someone of Farwell’s condition and whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that he should have done something.

The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and that he neither knew nor should have known of the need for medical treatment.

Two separate, but interrelated questions are presented:

A. Whether the existence of a duty in a particular case is always a matter of law to be determined solely by the Court?
B. Whether, on the facts of this case, the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?

‘A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ Prosser, Torts (4th ed.), s 53, p. 324. The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury.^[4] In Bonin v. Gralewicz, 378 Mich. 521, 526—527 (1966), this Court reversed a directed verdict of no cause of action where the trial court had determined as a matter of law that the proofs were insufficient to establish a duty of care:

‘Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.’

This same rule was stated more recently in Davis v. Thornton, 384 Mich. 138, 142, (1970). ‘The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury.’

Without regard to whether there is a general duty to aid a person in distress, there is a clearly recognized legal duty of every person to avoid any affirmative acts which may make a situation worse. ‘(I)f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff’s interests.’ [***] In a case such as the one at bar, the jury must determine, after considering all the evidence, whether the defendant attempted to aid the victim. If he did, a duty arose which required defendant to act as a reasonable person.

‘Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it,’ Prosser, Supra, s 37, p. 205. Whether those facts have been proved is a question for the jury. [***] There was ample evidence to show that Siegrist breached a legal duty owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to believe Farwell’s pain by applying an ice pack to his head. While Farwell and Siegrist were riding around, Farwell crawled into the back seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.

In addition, Farwell’s father testified to admissions made to him by Siegrist:

‘Q. Witness, just before the jury was excused, I asked whether you had any conversation with Mr. Siegrist after this event occurred. You answered, ‘Yes, the day *289 after in the living room of Mrs. Grenier’s (the deceased’s mother) home.’ Then, the jury was excused, and we made a special record, and now I would like to ask you some questions that I asked and that you answered out of the presence of the jury.
‘A. Yes.

‘Q. What did Mr. Siegrist say, how did the conversation go?
‘A. I asked him why he left Ricky (the deceased) in the driveway of his grandfather’s home.

‘Q. What did he say?
‘A. He said ‘Ricky was hurt bad, I was scared.’ I said, ‘Why didn’t you tell somebody, tell his grandparents”’? He said, ‘I know I should have, I don’t know.” (Emphasis added).

The question at trial came down to whether Siegrist acted reasonably under all the circumstances. [***] The jury in this case found that Siegrist did not act reasonably, and that his negligence was the proximate cause of Farwell’s death.

[***] Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell because he had no duty to do so. Courts have been slow to recognize a duty to render aid to a person in peril.^[5] Where such a duty has been found, it has been predicated upon the existence of a special relationship between the parties;^[6] in such a case, if defendant knew or should have known of the other person’s peril, [fn] he *291 is required to render reasonable care under all the circumstances. [fn]

[***] The Sixth Circuit Court of Appeals, in Hutchinson v. Dickie, 162 F.2d 103, 106 (C.A. 6, 1947), said that a host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht. The host controlled the only instrumentality of rescue. The Court declared that to ask of the host anything less than that he attempt to rescue his guest would be ‘so shocking to humanitarian considerations and the commonly accepted code of social conduct that the courts in similar situations have had no difficulty in pronouncing it to be a legal obligation.’

Farwell and Siegrist were companions on a social venture. Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Siegrist knew or should have known when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him before morning. Under these circumstances, to say that Siegrist had no duty to obtain medical assistance or at least to notify someone of Farwell’s condition and whereabouts would be ‘shocking to humanitarian considerations’ and fly in the face *292 of ‘the commonly accepted code of social conduct.’ [fn] (C)ourts will find a duty where, in general, reasonable men would recognize it and agree that it exists. [fn]

Farwell and Siegrist were companions engaged in a common undertaking; there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell’s aid.

The Court of Appeals is reversed and the verdict of the jury reinstated.

FITZGERALD, Justice (dissenting).

The unfortunate death of Richard Farwell prompted this wrongful death action brought by his father against defendant, David Siegrist, a friend who had accompanied Farwell during the evening in which the decedent received injuries which ultimately cause his death three days later. The question before us is whether the defendant, considering his relationship with the decedent and the activity they jointly experienced on the evening of August 26—27, 1966, by his conduct voluntarily or otherwise assumed, or should have assumed, the duty of rendering medical or other assistance to the deceased. We find that defendant had no obligation to assume, nor did he assume, such a duty.

The facts of the case are accurately set forth in the Court of Appeals opinion.

‘Factually, it appears that, on August 26, 1966, Richard Murray Farwell, deceased eighteen-year-old son of the plaintiff, visited the home of his friend, David Siegrist, a sixteen-year-old; that evening they drove to a trailer rental lot, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.

‘Siegrist and Farwell planned to wait in the car until the friend had finished work and then ‘drive around, ‘stopping at various restaurants and drive-ins. While they were waiting, Seigrist estimated that they consumed ‘four or five’ beers each. Shortly before nine o’clock p.m., two teenage girls walked past the car. After an unsuccessful attempt to engage them in conversation, Farwell left the car and followed the girls; Siegrist got out of the car and followed Farwell.

‘When the girls reached a restaurant a short distance down the street, they apparently complained to those present that they were being followed. Defendants Ingland, Brock, Donald Keaton, Daniel Keaton, and at least two others in the restaurant began to chase Farwell and Siegrist, both of whom ran back to the trailer lot. Siegrist escaped by ducking into the trailer rental office, where he requested those inside to assist Farwell. They stepped out of the office and were confronted by the group which had been chasing Siegrist and Farwell. The two groups faced each other, but no violence ensued, and the two groups scattered.

‘It was then discovered for the first time that Farwell had been caught and beaten by those who had been pursuing him and Siegrist; Farwell was found underneath his automobile in the lot.

‘Farwell was taken to the trailer rental office, where Siegrist gave him a plastic bag full of ice for his injuries. Shortly thereafter, Farwell and Siegrist left the rental office and, between ten o’clock p.m. and midnight, they visited four different drive-in restaurants. While en route from the third to the fourth restaurant, Farwell stated that he wanted to lie down, climbed into the back seat, and went to sleep. Around midnight, Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway, and attempted to rouse Farwell. When the latter merely made a sound as ‘if in a deep sleep’, Siegrist left with a friend who had followed him to the grandparents’ house. The next morning, Farwell was found by his grandparents, apparently taken to a hospital, and died of an epidural hematoma.

‘At the close of plaintiff’s proofs, defendant Siegrist moved for a directed verdict on the grounds that he had no duty to obtain medical assistance for Farwell as a matter of law. In the alternative, the motion was based upon the proposition that plaintiff failed to establish that any conduct on the part of Siegrist proximately caused Farwell’s death. The motion was denied.’[c]

Following the jury verdict of $15,000 in favor of the plaintiff, defendant, arguing that the verdict was inconsistent with the weight of the evidence, moved for and was denied a judgment notwithstanding the verdict. The decision of the trial court was reversed by the Court of Appeals which found that the defendant never assumed, voluntarily or otherwise, the duty of obtaining medical assistance for the deceased. The Court stated that the facts in no way indicated that defendant knew, or should have known, that immediate medical attention was required. Consequently, as a matter of law the Court determined that defendant was under no duty to obtain medical treatment for the decedent.

Plaintiff argues that once having voluntarily undertaken the duty of caring for decedent, defendant could not discontinue such assistance if, in so doing, he left the decedent in a worse position than when such duty was assumed. Defendant’s knowledge of the seriousness of decedent’s injury and the failure to advise decedent’s grandparents, the close personal relationship that existed between defendant and the decedent, and the supposition that the decedent relied upon defendant for assistance leads plaintiff to conclude that defendant did not act ‘with the reasonable prudence and care of a reasonable man in the same or like circumstances’. Defendant’s position is that there was no volunteered assumption of duty to care for the safety of the decedent. He argues that the facts within his knowledge on the evening of August 26, 1966, and the evidence introduced at trial failed to establish that defendant should have seen that Richard Farwell had suffered a potentially fatal injury requiring immediate attention.

Defendant did not voluntarily assume the duty of caring for the decedent’s safety. Nor did the circumstances which existed on the evening of August 26, 1966, impose such a duty. Testimony revealed that only a qualified physician would have reason to suspect that Farwell had suffered an injury which required immediate medical attention. The decedent never complained of pain and, in fact, had expressed a desire to retaliate against his attackers. Defendant’s inability to arouse the decedent upon arriving at his grandparents’ home does not permit us to infer, as does plaintiff, that defendant knew or should have known that the deceased was seriously injured.^[7] While it might have been more prudent for the defendant to insure that the decedent was safely in the house prior to leaving, we cannot say that defendant acted unreasonably in permitting Farwell to spend the night asleep^[8] in the back seat of his car.

The close relationship between defendant and the decedent is said to establish a legal duty upon defendant to obtain assistance for the decedent. No authority is cited for this proposition other than the public policy observation that the interest of society would be benefited if its members were required to assist one another. This is not the appropriate case to establish a standard of conduct requiring one to legally assume the duty of insuring [sic] the safety of another. Recognizing that legal commentaries have expressed moral outrage at those decisions^[9] which permit one to refuse aid to another whose life may be in peril, we cannot say that, considering the relationship between these two parties and the existing circumstances, defendant acted in an unreasonable manner.^[10]

Plaintiff believes that a legal duty to aid others should exist where such assistance greatly benefits society and only a reasonable burden is imposed upon those in a position to help. He contends further that the determination of the existence of a duty must rest with the jury where questions of foreseeability and the relationship of the parties are primary considerations.

It is clear that defendant’s nonfeasance, or the ‘passive inaction or a failure to take steps to protect (the decedent) from harm’^[11] is urged as being the proximate cause of Farwell’s death. We must reject plaintiff’s proposition which elevates a moral obligation to the level of a legal duty where, as here, the facts within defendant’s knowledge in no way indicated that immediate medical attention was necessary and the relationship between the parties imposes no affirmative duty to render assistance. See Steckman v. Silver Moon, Inc., 77 S.D. 206, 90 N.W.2d 170, 64 A.L.R.2d 1171 (1958). The posture of this case does not permit us to create a legal duty upon one to render assistance to another injured or imperiled party where the initial injury was not caused by the person upon whom the duty is sought to be imposed.

The relationship of the parties and the question of foreseeability does not require that the jury, rather than the court, determine whether a legal duty exists. We are in agreement with the general principle advanced by plaintiff that the question of negligence is one of law for the court only when the facts are such that all reasonable men must draw the same conclusion.^[12] However, this principle becomes operative only after the court establishes *298 that a legal duty is owed by one party to another. Prosser’s analysis of the role of the court and jury on questions of legal duty, recently quoted in Moning v. Alfono, Mich. (1975), bears repeating:

‘The existence of a duty [***] is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant,’ Prosser, Torts (4th ed.), s 37, p. 206.

Michigan recognizes that the question of duty is to be resolved by the court rather than the jury. [c] The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.

We would affirm.

Note 1. Why do you think the dissent goes to the trouble of revisiting and re-narrating the facts?

Note 2. Wingman Liability. This case has come to be cited for the creation of something called “wingman liability”—you owe a duty to your co-adventurer or “wingman” for the evening, even when you generally do not owe a duty of care to your fellow travelers in the world. It goes beyond simply owing a duty of care for your friends, very generally; instead, it seems to impose liability on you for harms that befall your companion for that evening, if you were in a position to curb, or prevent those harms. What does that rule do to life on many residential college campuses? Let me ask this another way; what would the rule do to life on such college campuses if legal rules were things that meaningfully shaped the conduct of actors in that age group (whether rules do or don’t is an open question, but assume for the moment that students knew about it)… would it change anything, in your view?

Note 3. Duty as Relational vs Duty as Act-Centered. Duty is often considered categorically, in terms of classes of actors or entities who owe duties to other classes of actors or entities. But in some cases, courts find particularized duties to given individuals. Should a therapist aware of a specific deadly threat by their client to a third party outside their care be found to owe a duty to that threatened individual? (See supra, Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976). (yes) Should an adulterer aware of a sexually transmitted disease be found liable to the spouse of his lover to refrain from transmitting it to him? (Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989) (yes). If foreseeability is the rationale behind both of these instances, should it matter how the court crafts its decision and how broad a duty it defines? In Tarasoff, the court created a broad duty on any psychologists or relevant social workers to all foreseeable nonpatients at risk of credible attack by a patient. In Mussivand by contrast, the court found a specific duty ran between the parties but did not articulate a broader class. How far should foreseeability go in establishing duty and how granular should courts get? Decision by a judge can enable a broadly defined scope of foreseeability whereas determination by a jury at the proximate cause stage requires case-sensitive decisionmaking that will necessarily be narrower. While the study of proximate cause is still ahead of you, it is important to begin to see the significance of defining the scope of tort law and allocating decisional authority to the judge (to decide it as a function of duty) or the jury (to decide it as a function of proximate cause).

One critique of the notion of duty as relational (associated with Cardozo’s opinion) argues that the relational theory does not align with how people act, which is better captured in an act-centered view (associated with Andrews’ dissent):

In most circumstances, one does not act toward others at all. If one considers doing an act–driving a motorcycle, going for a jog, shooting a gun, or even having sex–one typically considers only whether the act might create a risk generally. If so, then one feels an obligation to take care in doing the act. Of course, once one is motivated by a sense of obligation, one might then consider the number, proximity, and vulnerability of others in determining what constraints on an activity might be required. This second step in one’s thinking, however, is an analysis of reasonableness–a matter for breach, not duty. Obligation-based duty reasoning seeks the internal—albeit objective—perspective of a person in the defendant’s position at the time of acting. …[W]e think that obligations to act reasonably are most accurately described as act centered and nonrelational. … Returning to the facts of Mussivand, it would seem callous and strange to say that one owes an obligation to avoid infecting one’s sexual partner [under a relational view of duty narrowed as under Mussivand], but no obligation to avoid spurring the infection of an entire community [under an act-centered nonrelational approach to duty].

W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal. L. Rev. 671, 720 (2008) (citations omitted and emphasis added).

Which seems to you the better approach, at this point? Does your answer depend on who makes the determination, judge or jury? To what extent does duty inevitably begin to entail discussions of breach of that duty and inquiries into the defendant’s conduct? How does this inquiry change—and how should it change—over time?

Exceptions to the No Duty to Rescue Rule

The Restatement sets out clear exceptions under which a duty to rescue arises. The Restatement (Second) of Torts § 314 makes clear that “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”

Section 314A of the Restatement Second of Torts provides the following exceptions to the general rule that one person need not assist another:

§ 314A. Special Relations Giving Rise to Duty to Aid or Protect

(1) A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

The duty that arises under Section 314A exists because of the special relationship between the parties. Restatement § 314A, cmt. b. The relationships listed in the rule are not intended to be exclusive, id; nevertheless, some courts have restricted the application of § 314A to business invitees.

The Restatement illustrates contexts in which arise both common law and statutory exceptions to that general “no duty to rescue” rule. These include instances in which an entity has a duty to give first aid or assist someone with whom it stands in a special relationship. The examples include a common carrier exception (recall the doctrine imposing a higher duty on common carriers first seen in Luther); an innkeeper (on similar grounds as common carriers); a possessor of land; and someone who undertakes custody of another. In addition, courts tend to find such duties when a special relationship exists (think parent/child, employer/employee, caregiver/dependent, close friends, perhaps even teacher/student). Special duties can also arise by contract (employment contracts, or contracts to provide services) as well as through certain other relationships governed by legal principles, such as those shaping property ownership and imposing premises liability in certain instances.

Duties of Common Carriers and Innkeepers

The next case revisits the common carrier doctrine (which you saw in Gulf v. Luther). Historically, common carries and innkeepers were subject to a heightened duty of care as reflected in the Restatement’s § 314(A). Bullock v. Tamiami explores that duty and the standard of reasonable care implied by such a duty in the context of the segregated South. The Civil Rights Movement would ultimately force an end to legally permitted segregation. However, in this case, you will find outright racism (and outdated language) as well as facts involving violent assault for which the law provides a remedy on the basis of a heightened duty.

Bullock v. Tamiami Tours Inc., United States Court of Appeals Fifth Circuit (1959)
(266 F.2d 326)

The appellants are Negroes, British subjects, natives of Jamaica, married to each other, and in their early fifties. For more than twenty years the husband has been a minister of the Church of England. The wife is a musician and teacher. Racial segregation is not practiced in the island of Jamaica.

Prior to 1956, the appellants had left that island on only one trip and that was to European countries and South American countries which did not segregate the races. They were not familiar with the racial segregation practiced in the Southern part of the United States.

In August 1956, they decided to make an extended visit to the United States, landing in Miami and going by bus first to Kansas City and then to New York. They made arrangements for the trip through the Mountain Travel Service before leaving Jamaica and bought tickets over the appellee’s bus line. When the bus arrived in Perry, Florida, they were sitting together in the forward part of the bus usually occupied by white passengers. The husband was dark or black, while the wife, though a Negress, appeared to be a white woman.

At Perry, Florida, one Milton Poppell entered the bus and violently assaulted and beat the husband and slapped the wife. The circumstances are well described in the testimony of Poppell, quoted in the margin.^[13]Other evidentiary *329 facts are stated in some detail in the opinion of the district court reported in 162 F. Supp. at page 203 et seq.
After reaching New York, the appellants brought suit against the appellee in a New York State Court, claiming that the appellee had breached the duties owed to them as passengers by omitting to warn them of a foreseeable danger, by failing to protect them from that danger, and by willfully, or at least negligently, aggravating the danger. The appellee, incorporated under the laws of Florida, being sued by citizens and subjects of *330 Great Britain, had the case removed to the United States District Court for the Eastern District of New York [Under 1332]. That Court transferred the action to the United States District Court for the Northern District of Florida [Under 28 U.S.C.A. § 1404].

There the case was tried to the court without a jury. After fairly finding the evidentiary facts in a manner to which the appellants take only minor exceptions, the district court entered judgment for the defendant, feeling that the law of the State of Florida required it to do so, and said in part:

‘In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, the Florida Supreme Court held that a carrier was not liable to a passenger for an unprovoked and illegal assault in cases such as this case. Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the case cited above. ‘Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,’ Bullock v. Tamiami Trail Tours, D.C.N.D. Fla.1958.

We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier. In so far as those ultimate facts are simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, they are subject to review by this Court free from the restraining influence of the ‘clearly erroneous’ rule, Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; [c]. To the extent that the inference of negligence is controlled by Rule 52(a), supra, this Court, on the entire evidence, ‘is left with the definite and firm conviction that a mistake has been committed.’ [c].

In Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151, the case relied upon by the district court as dispositive of the case at bar, a female passenger was assaulted by a male passenger in a Pullman berth, they being the only two occupants of the car. Holding that the plaintiff’s proof failed to support her allegations that a porter and conductor heard her calls and bells in time to have prevented the assault, the court stated:

‘The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command. [c]

‘In guarding a passenger from a danger which is not usual or not incident to ordinary travel the carrier is held to the use of ordinary and reasonable care and diligence. It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests. It is not the fact of injury to the passenger that fixes the carrier’s liability. The injury must have been of such character and inflicted under such circumstances as that it might *331 have been reasonably anticipated or naturally expected to occur.’ [c]

In Kenan v. Houstoun, 1952, 150 Fla. 357, where, after alighting from the Florida East Coast train, plaintiff was struck on the legs by an ejection of steam from a nearby L&N train causing her to move about rapidly and fall over baggage, the court, in quashing a judgment against the Florida East Coast Railway, stated:

‘* * * When it appears that the agency which caused the injury was other than defendant or its agents the plaintiff must prove that defendant knew or by the exercise of ordinary care could have known of it in time to remove the cause of the injury. [c]

‘It is settled law that under the facts stated the Florida East Coast was bound to furnish Mrs. Houstoun reasonably safe facilities for leaving the train and to remain in the station but unless said company or its agents were in some way responsible or could have foreseen and prevented the accident, it cannot be held responsible for injury caused by the negligent act of a third person. In this case, the L. and N. Railway was the third person and we think was responsible for the accident. It was in no way attributable to the negligence of petitioner nor do we know of any criterion by which it could have been put on notice of it. It had not happened before and the character of it was of such a nature that it could not have been reasonably foreseen.’ [c]

Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been ‘reasonably anticipated’ or ‘naturally expected to occur’ or ‘reasonably foreseen’ in time to have prevented the injury. (84 Fla. 9, 93 So. 157.) If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.^[14]

It was impossible for the driver to have protected the Bullocks from Poppell’s assault after his intent became evident, but we think that the district court was clearly erroneous in holding that Tamiami could not have reasonably anticipated or foreseen the danger to the Bullocks in time to have at least warned them of its imminence. We can visualize no stronger case than this to show a situation where two bus drivers and the bus company officials should have reasonably anticipated that mischief was hovering about and that the Bullocks were in some danger.

The first driver testified that many people in West Florida would not approve of the Bullocks’ being seated together toward the front of the bus. Driver Cunningham stated that there would have been less chance of trouble if the Bullocks had been sitting in the back. The first driver, after explaining to a complaining passenger that he could not move the Bullocks, heard another passenger say something like ‘they probably will move on down the line.’ Both drivers had actual notice of the two Company bulletins dated January 31, 1953, and January 23, 1956, the latter plainly warning the drivers of possible racial disturbances.^[15] Certainly, the first driver *332 and, no doubt, Cunningham knew the Bullocks were Jamaicans and British Nationals, and it is logical to infer that the drivers knew the Bullocks were not experienced with ‘southern tradition.’ All of the appellee’s witnesses testified that this was the first instance they knew of in that part of the country where a Negro man and a seemingly white woman were seated together on a public carrier.

Furthermore, this Court will take judicial notice (as the district court should have done) of the commonly and generally known fact that the folkways prevalent in Taylor County, Florida, the county seat being Perry, would cause a reasonable man, familiar with local customs, to anticipate that violence might result if a Negro man and a seemingly white woman should ride into the county seated together toward the front of an interurban bus.^[16]

The next question is whether or not Tamiami, so charged with a duty of foreseeing danger to its passengers, took proper precautions to avoid such danger by the ‘utmost care and diligence of very cautious persons.’ We think that Tamiami failed to exercise this care in several ways. It should have instructed its agency in Jamaica to advise Negroes applying for passage through the southern part of the United States of the South’s tradition of segregation. It should^[17] have instructed its driver to advise Negroes who were obviously foreigners, here known to be such, of segregation customs. The driver should have explained to the Bullocks his reasons for wanting them to move. Above all, the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.

The district court found, at least impliedly, that Tamiami was not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages, and to that extent its finding is not clearly erroneous. Upon the present record, however, we conclude that the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger, and that Tamiami breached the duty owed to its passengers, the appellants. The judgment is therefore reversed and the cause remanded with directions^[18] to enter judgment for each of the plaintiffs, appellants, and upon the evidence contained in this record, to award each of them reasonable compensatory damages, including damages for physical injury and mental suffering and humiliation.^[19]

Reversed and remanded with directions.

Note 1. Reading the assailant’s testimony included in the court’s footnote makes his culpability unmistakable. He boarded the bus—despite having his car with him—only after learning from the bus driver that a supposedly interracial couple was on the bus and not following the rules regarding where on the bus they were allowed to sit. He didn’t give the Bullocks notice or a chance to move. He bought a ticket expressly in order to pick a fight that had been as much as invited by the bus driver. The court treats the assailant’s actions as intentionally tortious and the bus driver’s conduct as negligent (“not guilty of any willful or aggravated misconduct justifying the imposition of punitive damages”). Do you agree? Based on your study of the intentional torts and requisite intent levels, at what point should the bus driver, too, be deemed to have participated or spurred on Poppell? What facts, if any, would clearly convert the driver’s conduct from unreasonable to intentional?

Note 2. Judicial Method, Rhetoric and Tone. On certain fact patterns in which an obvious wrong has been committed, it can be easy to feel intuitively frustrated by the law’s slow analytic process of following particular steps in formal analysis. To what extent is “formalist” analysis appropriate when actions are so plainly discriminatory? Should the law be permitted to focus on function over form in cases in which significant dignitary rights are at stake? If so, what contexts seem to you to be appropriate? What responsibilities does a court have to identify when conduct goes well beyond the acceptable? If we assumed the substance of the outcome were the same in 2021 as it was back in 1959, how would the rhetoric of this court sound, do you think? Often, contemporary courts use a tone that seems to aspire to “colorblindness” rather than expressly calling out dynamics of race. Why might this be the case? Should this change? Why or why not, and how so?

Note 3. One of the leading scholars on questions of race and gender in tort law has written that the doctrinal reasoning in Bullock reflects the race politics of its era: “The duty of the carrier, then, was specific to that time and place, and was specifically based on anticipating racist attacks.  All of the bus company’s witnesses stated that this was the first time they knew of a black man and a white woman sitting together on a bus or train in that region. The attacks should have been anticipated, not simply because a black person was sitting in the front of the bus, but because the combination of “a Negro man and a seemingly white woman” sitting together in the front was obviously incendiary. The Fifth Circuit recognized this as a risk-creating combination of people, space, and circumstances. By contrast, the trial court ignored the volatile gender-race confluence and saw this assault as a fluke, as unforeseeable, and therefore something for which the bus company should not be liable. … To the trial court, the harm was unforeseeable, and thus the company had no duty to prevent it. [***] Both views about duty and foreseeability of risk are dependent on opposing empirical conclusions drawn by courts.” Jennifer B. Wriggins, Toward A Feminist Revision of Torts, 13 Am. U. J. Gender Soc. Pol’y & L. 139, 150-151 (2005) (internal citations omitted)

It is somewhat difficult to reconcile these different perceptions of foreseeability without reference to the historical context and the particular social context of each court. Relatedly, what do you make of the lower court’s statement that it is bound, descriptively, by the law it must follow: “Without regard to the views of this Court as to what the law should be in such a case as this the decision of this Court is completely controlled by the decision of the Supreme Court of Florida in the case cited above.”

How does it square with the appellate court’s response: “We are not in agreement with the district court either as to the Florida law or as to the ultimate facts, inferences or conclusions of duty and breach of duty on the part of the appellant carrier.”

Throughout this book, we have distinguished descriptive and normative accounts of law. Are there instances in which we ought to expect these two categories may blur? Does this blurring suggest that entrenched structural racism is a symptom of our legal system or a byproduct or are there other possibilities for how the courts interpret the law here?

Note 4. The context of the case may seem to make its facts exceptional. However, plaintiffs continue to bring lawsuits charging common carriers with breach of duty to provide safe passage. In an era in which racial tensions have been heightened nationally for several years and many people rely on public transportation to get to their schools and jobs, what scope of duty do you think is appropriate for common carriers? Not all jurisdictions retain a heightened duty; for instance, New Jersey does so though New York imposes only a reasonable a duty of care. How far should common carriers be expected to go when unruly or dangerous passengers begin to make trouble for other passengers? Recall the foreseeability analysis of Walls v. Oxford Management.

Could the reasoning from Walls be applied in this context? A recent case suggests judicial willingness to hold such defendants to account even for conduct by third parties. The attacks on the passenger are violent and ugly in nature, and the court considered the policy issues explicitly and with laudable nuance. Consider as you read this excerpt of the case whether gender, race, class and age are likely to have played any role in the facts or in judicial analysis of the facts.

Maison v. New Jersey Transit Corporation, Supreme Court of New Jersey (2021)
(245 N.J. 270)

[***] Every day, throughout this state, thousands of people take buses and trains to commute to work, visit family and friends, and travel to vacation spots. Those modes of transportation are known as common carriers. Passengers pay fares to common carriers to safely transport them to their destinations. Under the common law, privately owned carriers owe their passengers a heightened duty of care to act with the utmost caution to protect them, even from the wrongful acts of co-passengers – a duty to act as would a very careful and prudent person in light of the circumstances. [***] In this case, plaintiff Anasia Maison on her commute home from work took an NJ Transit bus. During the ride, a group of four to five teenagers verbally and physically harassed her as the bus driver silently watched and drove on. Despite the escalating threats and unruly behavior toward Maison, the bus driver did nothing – did not call out the teenagers, stop the bus, or contact *275 NJ Transit or the police. As one of the teenagers disembarked, he threw a bottle striking Maison in the forehead, causing a permanent and serious injury.

On July 21, 2013, Anasia Maison, a twenty-year-old college student, was working at a New York City pharmacy until her shift ended at 12:00 a.m. on July 22. On her way back home to Newark, she first took an NJ Transit train to Penn Station in Newark, arriving there at around 1:00 a.m. At Broad and Market Streets, she boarded an NJ Transit bus operated by defendant [bus driver] Coats. She paid her fare and took a seat towards the rear of the bus. Two rows behind her were four to five male teenagers. *277 Maison testified that as soon as the bus pulled away, she was struck on the side of her face by an unknown object “thrown very hard” by one of the teenagers. She turned to them and asked, “why are [you] bothering me?” One of the young men said to his friends that Maison “should ‘f’ one of them up.” A few seconds later, another object was thrown at her, but it hit only the chair. She turned again and asked the young men to stop harassing her. They told her “to shut the f**k up” and loudly hurled insults at her. In response, Maison admittedly used foul language, but the stream of profanities from the young men continued. Maison could see the bus driver, Coats, watching the commotion in his rearview mirror, but Coats kept driving.

When one of the teenagers brandished a knife, Maison said “out loud,” [sic] “I need help.”

Although she could not tell whether Coats heard her, she saw that he was peering at her through his rearview mirror. Frightened, Maison got up and moved toward the front of the bus, but when a passenger told her, “[you] better not come up here,” she returned to her seat where the insults continued to rain down on her. She tried to make a call from her cell phone, but the signal failed – and the attempted call caught the attention of the youths. A minute or two later, one of the teenagers rang the bell for the bus to stop. As they were leaving through the rear side door of the bus, Maison heard a passenger tell one of them, “don’t do it” – and then, all of a sudden, a bottle struck her in the face. As she bled from the forehead, the youths continued to taunt and threaten her through the open door of the bus.

Maison called out for help, yelling: “I need ambulance. I need police.” Coats remained in his seat. A passenger gave her a cell phone, which she used to call the police and an ambulance. After the ambulance arrived, Maison was transported to Beth Israel Hospital, where she received twenty-two stitches to treat the wound to her forehead – the site now of a permanent scar that has left her self-conscious about her appearance. In the aftermath *278 of the attack, she suffered from very bad headaches and delayed her college graduation.

In his testimony, Coats recalled that Maison boarded the bus at about 1:14 a.m. and, immediately afterwards, four to five young men entered and took seats behind her. As he drove, he observed through his rearview mirror the young men and Maison “cursing back and forth” –“a lot of b’s and f’s.”  [fn] A passenger interceded and said to the young men, words to the effect of, “don’t disrespect her, don’t call her the b word.” According to Coats, Maison “was handling herself very well.” He monitored the situation and knew that there was a threat to Maison. He acknowledged that his job was to get his passengers “from point A to B safely” but also stated in his deposition testimony read to the jury that “it’s not my job to get involved. First of all, my safety comes first.”

Seven to eight minutes into the drive from Broad and Market Streets, where the verbal conflict began, someone pressed the bell for the Hayes Circle stop. Arriving there, Coats opened the front and rear doors, and then he heard “a smack,” “glass breaking,” and “Maison screaming.” He looked back and saw that Maison had been hit and was bleeding profusely and that a passenger was consoling her. Coats got up, observed the shattered pieces of a liquor bottle on the ground and seats, and asked if she wanted an ambulance or the police. She “screamed,” “yes.”

Coats, however, did not call directly for an ambulance or the police. He followed NJ Transit’s procedure and pushed a button to call NJ Transit’s control center. Coats waited for about fifteen minutes before the control center returned his call. The control center then contacted the police and emergency medical services. Coats did not believe that NJ Transit policy permitted him to use his cell phone to contact first responders.

*279 Coats stated that he never observed the young men throw objects at Maison or flash a knife, never heard Maison call out to him, and never saw her get out of her seat. He admitted that he monitored the situation in the rear of the bus during the seven- to eight-minute ride to Hayes Circle and that he did not stop the bus, tell the young men to “knock it off,” call the police, or contact NJ Transit’s control center until after Maison was hit with the bottle.

The police never apprehended the young men who tormented and assaulted Maison. [***]

[The bus driver attempted at trial to state that he had merely been enforcing the law. A footnote calls that into question] “The court asked defendants’ counsel what law the bus driver was “executing or enforcing.” He responded, “[c]andidly I’m at a loss to articulate one.””

[***] The jury was charged on the law applicable to common carriers, as set forth in Model Jury Charges (Civil), 5.73(A)(2), “Carriers for Hire” (approved June 1988). The court instructed the jury that

[a] common carrier must exercise a high degree of care to protect its passengers from dangers that are known or reasonably foreseeable. Carriers must use the u[t]most caution to protect their passengers. The kind of caution that is characteristic of a very careful and prudent person. A carrier must act with the highest possible care consistent with the nature of the undertaking involved. This includes the duty to protect passengers from wrongful acts of co-passengers if the u[t]most care could have prevented those acts from injuring a passenger.

If a danger was known or reasonably could have been anticipated[,] the carrier has a duty to protect its passenger from any injury that could be caused by that danger.

*280 The jury returned a verdict finding both NJ Transit and Coats liable. The jury also found that Maison sustained a permanent disfigurement from her injury and awarded her $1,800,000 in damages. [***] The Appellate Division affirmed in part and reversed in part, remanding for a new trial only on the allocation of fault between the bottle thrower and defendants. [fn] [cc] The Appellate Division concluded that the trial court correctly held NJ Transit to “the common carrier standard of negligence” and observed that “our case law has viewed bus lines generally, and public transit systems specifically, as common carriers for many years.” [***]

Last, the Appellate Division determined that the trial court erred in not placing the bottle thrower on the verdict sheet to allow for the allocation of fault among the tortfeasors. [c] [W]e affirm the Appellate Division, including its determination that the damages award should stand and that the new jury should not be informed about the amount of the award.

Note 1. The court reasons that “If a danger was known or reasonably could have been anticipated[,] the carrier has a duty to protect its passenger from any injury that could be caused by that danger.” Is this merely following the scope and logic of Tarasoff or does it expand upon that earlier case?

Note 2. What does it mean to “plac[e] the bottle thrower on the verdict sheet,” both practically and legally?

Note 3. The court ruled that the damages award stands and the jury should not be informed of the amount. Why? What does the court presume may happen? What concerns are animating this decision to let the award stand but also to allow its potential reallocation?

Duties Related to Premises Liability

Special rules that vary by jurisdiction and circumstance define the duties of possessors of land to those who enter it, as illustrated above in the Restatement’s Section 314A. Most jurisdictions follow the traditional rule at common law and determine the duties of possessors of land based on the status of the entrant: a trespasser, a licensee or an invitee. The distinctions among duties of care owed to these three categories of entrants arose due to the social hierarchy of the feudal system: medieval landowners held land and were thought to deserve the right to enjoy it without concern for protecting against injury to those who entered their land without permission. William Prosser, Law of Torts 359 (4^th ed. 1971).

Roughly twenty-two jurisdictions have either abolished or modified the status-based system, by judicial decision or statute or both. Most of these follow a landmark ruling in California that paved the way for the modern approach, which mandates that a duty of reasonable care is owed to all entrants regardless of status but applies a series of factors that particularize the duty further.

Note that for our purposes, “owners,” “possessors” and “occupiers” of land are used interchangeably and courts and legislatures take varying approaches on whether they use one or more of the terms. The primary point for you to take from that is that a person need not own property to be liable for harm that occurs on it, if they are otherwise the possessor or occupier of that property. (Usually a possessor means the person presently permitted to be there, such as a renter or longterm guest; an occupier is the person who is presently inhabiting the premises whether or not they have a legal right to do so).

Traditional Status-Based Approach. Idaho, whose slip-and-fall case, McDonald v. Safeway, is assigned in Module 3 (under Circumstantial Evidence), sets out the following rules:

“Invitees are owed the highest duty of care in premises liability, and there are two avenues for a plaintiff to establish that he is an invitee. … A plaintiff can either establish that he was on the premises “for a purpose connected with the business conducted on the land,” or that “it can reasonably be said that the visit may confer a business, commercial, monetary or other tangible benefit to the landowner.” [c]

In Idaho, a landowner owes an invitee the duty to keep the premises in a reasonably safe condition and or to warn the invitee of any concealed or hidden dangers. Often, litigation centers on whether the landowner knew or should have known of a particular risk. A second issue that arises with some frequency is whether the invitee exceeded the scope of their permitted access. For instance, if a customer in a grocery store sneaks into the back room to use the employee restroom and trips over a carelessly placed mop, the customer may be treated not as an invitee but as a licensee or possibly a trespasser (both the facts and the specific jurisdiction’s case law matter to the analytical outcome).

On the other hand, ‘[a] licensee is a visitor who goes upon the premises of another with the consent of the landowner in pursuit of the visitor’s purpose.’” [c] Dupuis v. E. Idaho Health Servs., Inc., No. 47917, 2021 WL 1416551, at *5 (Idaho Apr. 15, 2021)

In Idaho, a property owner owes a licensee the duty to share knowledge of dangerous conditions or activities on the land, usually through warning signs or some other means of putting entrants on notice. This duty specifies a lower standard of care to a licensee than to an invitee; the land owner need not fix a dangerous condition with respect to a licensee’s presence on their premises but must merely warn of it once it is discovered (or ought to have been discovered by the owner). The distinction between the first two categories, then, is that invitees are people whom a business invites onto their premises as part of its provision of services or goods; invitees are analogous to customers. Licensees are those who are merely permitted to be on the premises, more like guests or visitors. The rationale for the higher standard of care towards invitees is that the owner is seeking to profit off the invitee’s presence on their premises and thus the invitee ought to be able to expect reasonable efforts to make the premises safe.

“Anyone who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered. [The landowner] is only required to refrain from wanton or willful acts which occasion injury.” [c] “But, once the presence of the trespasser becomes known or reasonably could have been anticipated, the land owner has a duty not to injure the trespasser by any intentional or reckless act.” “This standard of conduct prohibits the owner from engaging in “intentional or reckless actions, taken under circumstances where the actor knew or should have known that the actions not only created an unreasonable risk of harm to another, but involved a high degree of probability that such harm would actually result.” [c]

Idaho’s rules are representative of the common law rules and the majority of jurisdictions retain the “tripartite” system of classifying duties according to status of entrant.

Modern Approach. In Rowland v. Christian, plaintiff James Rowland was a guest in defendant Nancy Christian’s apartment. When he used the bathroom faucet, the porcelain handle broke, causing serious injury to his hand which included severing tendons and nerves and which led to Rowland’s incurring $100,000 in general damages. It did not appear that the crack in the handle was obvious to ordinary inspection or concealed although Rowland had used the sink before. Christian knew for two weeks that it was broken and had asked the landlord to repair it but failed to warn Rowland. Students often wonder why a guest would sue their host and whether other defendants were not available. First, duties of “possessors” of land reaches more broadly than owners; as a renter, Christian had certain duties that were distinct from those of the landowner. Second, the Supreme Court’s opinion does not clarify that the two did not know each other well, a fact that was included in the appellate court’s opinion: they were introduced through a mutual friend and Christian had agreed to drive Rowland to the airport so he could board a plane. For reasons the record does not divulge, either she invited him to her apartment beforehand and he was injured using the bathroom while waiting for the defendant to get ready for the drive to the airport, or he appeared at her apartment to ask for a ride. (The facts appear contested on this point.) The time he injured his hand was not the first time using the faucet but the record does not contain many more clues beyond that. The trial court granted summary judgment and the appellate court somewhat reluctantly affirmed, noting that on the record it did not believe it could change the law but implying its desire to do so. (“We are mindful of the criticisms directed at the California rule. [c] In the present case, however, the scope of our review is defined by the rules applicable to summary judgments. Acting within a context thus limited, we have concluded that substantive law cannot be changed on the narrow evidentiary base presented by this record.” Rowland v. Christian, 63 Cal. Rptr. 98, 104 (Ct. App. 1967)).

The appellate court’s analysis focused on whether a known condition such as a broken faucet handle was analogous to a trap since the “trap exception” could give rise to a duty to warn entrants on land and in some cases a duty to remedy or “protect” them. Its analysis reflects a formalistic emphasis on remaining within the contours of existing law. The Supreme Court took a different tack, treating the case as a paradigmatic example of the fundamental principle that everyone has a duty to refrain from causing harm to others. A civil statute in California had long codified that rule, lending further support for the court’s reasoning.

It’s worth noting that one of the leading proponents of the modern view of generalized duty, William Lloyd Prosser, was the Dean of U.C. Berkeley’s law school from 1948-1961 and then a professor at U.C. Hastings Law School. He was a venerated jurist nationally as well as in California in particular and his treatise, textbook and massive contributions to the Restatements on Torts meant that he had directly or indirectly shaped the views of many students and judges. It is hard to overstate his influence on tort law (then and now). Recall that at early common law, the general rule was no duty absent contract, privity or some other justification for creating an affirmative duty. From Prosser’s reformulated approach to duty—that everyone had a general duty unless some exception existed—the Rowland court could argue that the tripartite system of status-biased duties effectively created a set of immunities that reduced the general duty. Under the old view of duty, the tripartite system could be cast as adding or creating duties rather than limiting them. This new reading inverted that description of duties and immunities. This inversion is key to understanding the revolution Rowland brought about.

Rowland identified factors to consider in permitting a departure from the general duty rule and then pointed out how the status of the entrant was not dispositive in analyzing those factors. It cast the traditional system of defining limited duties as linked to historic rationales that had grown outdated:

The ordinary justification for the general rule severely restricting the occupier’s liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. [c] An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the licensee has been imposed on the occupier of land. Id. at 114, 565.

Clearing away “the ancient concepts as to the liability of the occupier of land” and applying standard negligence analysis, it reversed the grant of summary judgment. The court held that because Christian appeared to be aware that the faucet handle was dangerous and had failed to warn or remedy, her behavior constituted negligence: “Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” Id. at 120.

Even in the jurisdictions that have abandoned or modified status-based duties, subsequent courts often refer to the “Rowland factors” in analyzing the duties of possessors of land. Consequently, courts end up continuing to make some distinctions among entrants along factually nuanced, if not categorical lines. See Perez v. S. Pac. Transportation Co., 218 Cal. App. 3d 462 (Ct. App. 1990) (“The status of a claimant at the time of his injury no longer affects the general duty of the possessor of property to exercise ordinary care with respect to reasonable foreseeable risks of personal injury to persons coming on the property. The possessor’s duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers.”)

Given tort law’s propensities for fact-sensitive adjudication, can you see why? Cutting against that, since duty is ordinarily a question of law not fact, is the modern view introducing unnecessary complexity in the form of these factual, rather than categorical inquiries?

“A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and (7) consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the (8) availability, cost, and prevalence of insurance for the risk involved.” Id. at 112–13, 564. [enumeration added]

Which approach seems more sound, in your view, the status-based system of duties or a general duty informed by the Rowland factors? What do these factors add that is not already involved in duty analysis?

Duties to Children. Landowners may owe children special duties, even when they trespass. The (best-ever-named) doctrine of Attractive Nuisance sets out specific duties to safeguard one’s land against known attractions and risks.

Restatement 2d Section 339 – Artificial Conditions Highly Dangerous to Trespassing Children – A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Under the attractive nuisance doctrine, trespassing children have the burden of proving that they did not anticipate the danger when entering the property; it is the expectation that their immaturity will make it difficult for them to understand the risk that justifies the doctrine. Otherwise, it will be assumed that they are ordinary trespassing thrillseekers who understood the risk and proceeded anyway. The plaintiff must also prove that it was feasible for the landowner to eliminate the dangerous condition. This may not mean removing something dangerous but it may require boarding it up or taking other steps to repair or limit access. The cases originally arose to protect children playing on railroads but the fact patterns have involved swimming in unbarricaded water or pools, diving from various structures, and other activities involving unsecured machinery.

Summary of Duties of Owners and Possessors of Land—Majority and Minority Approaches
Traditional “Tripartite” Approach (majority approach)	Status of Entrant
	Business Invitee	Duty to keep the premises in a reasonably safe condition and or to warn the invitee of any concealed or hidden dangers
	Licensee	Duty to warn of dangerous conditions or activities on the land
	Trespasser	Duty not to intentionally injure (through traps or spring guns, e.g.). No duty until trespasser’s presence is discovered or reasonably ought to have been discovered; then a duty to refrain from wanton and wilful conduct that could injure trespasser; in some jurisdictions, also a duty to warn of latent or hidden defects.
	Children	Duty to exercise reasonable care to eliminate dangerous conditions creating extraordinary risks of harm to children (“attractive nuisance doctrine”)
Modern Approach (CA)	All Entrants	Duty of reasonable care
	Children	Duty of reasonable care

Duties That Specify Particular Conduct

Implicit in discussions of duties owed to children and to specific classes of entrants under the traditional approach is that in some instances, determining whether a duty exists and the standard of care it requires become interdependent questions. Put another way, in the area of limited duties, duty is sometimes articulated as a duty to do a specific thing—that is, as an act-centered kind of duty rather than a purely relational one.

Discussions of limited duty will often entail some specification of the standard of care or specific acts. Given this, you might consider whether such duty determinations should be shifted to the jury as a question of fact or retained for determination by the judge as duty questions usually are. One justification for retaining them as a question of law is that whole classes of actors may be similarly situated. Do Taco Bell and restaurants like it owe a duty to take particular steps to its business invitees? Do Carnival and other cruise ship operators owe a duty to take particular steps to keep customers on its cruises safe? In the next case, Carnival may have had a duty to do X with respect to Ms. Carroll but not a duty to do Y. Either way, it is beyond doubt that Carnival did have a duty to Ms. Carroll; the question is what that duty required of Carnival.

Carroll v. Carnival Corporation, U.S. Court of Appeals, Eleventh Circuit (2020)
(955 F.3d 1260)

Elaine Carroll tripped over the leg of a lounge chair while she was walking through a narrow pathway on a Carnival cruise ship. She sued Carnival, alleging that it negligently failed to maintain a safe walkway and failed to warn her of that dangerous condition. The district court granted summary judgment in favor of Carnival on both claims, concluding that the condition was open and obvious and that Carnival lacked actual or constructive notice of the hazard. After review of the record and the parties’ briefs, and with the benefit of oral argument, we reverse. ***

In March of 2015, Mrs. Carroll and her husband Michael were passengers on board the Carnival Pride. On the first full day of the cruise, Mrs. and Mr. Carroll *1263 were walking to one of the restaurants, David’s Steakhouse, on Deck 11 of the ship. The outer glass wall of David’s Steakhouse is curved in the shape of a semi-circle. Lounge chairs are set up in a semi-circular shape along the curved glass wall of the restaurant.

To get to the restaurant, the Carrolls had to walk on a curved walkway between the foot-end of the row of lounge chairs (on their right side) and the ship’s railing (on their left side). When they initially approached the walkway, there were approximately two to three feet between the chairs and the railing, so they were able to walk side-by-side. At some point after passing the first chair, however, the distance between the chairs and the railway narrowed, so Mrs. Carroll’s husband walked in front of her and she followed behind him. While Mrs. Carroll was walking behind her husband, her right foot clipped the leg of one of the lounge chairs, causing her to fall and suffer injuries.

Mrs. Carroll sued Carnival for negligence. She asserted, among other things, that Carnival negligently maintained a dangerous condition—“lounge chairs that narrowed and protruded onto a pedestrian walkway”—and negligently failed to warn passengers of the danger associated with that condition. Carnival moved for summary judgment, arguing that the lounge chairs did not constitute a dangerous condition, and even if they did, it had no duty to warn of the condition for two reasons. First, the condition was open and obvious. Second, Carnival lacked notice of the hazard. Mrs. Carroll opposed the motion, responding that although the lounge chair that she tripped on was not hazardous in and of itself, the location of the lounge chairs and the manner in which they were arranged constituted a dangerous condition. She also argued that the condition was not open and obvious because, due to the layout of the lounge chairs and the narrowness of the path, she was forced walk behind her husband, obstructing her view. And she asserted that she did not need to prove that Carnival had notice of the hazard because it created the unsafe condition.

Both parties presented evidence in support of their positions, including the deposition testimony of Mrs. and Mr. Carroll and several Carnival employees. Mrs. Carroll also presented the affidavit of an expert, Randall Jaques, who opined that the walkway was unsafe and fell below industry standards.

[The district court granted Carnival’s motion for summary judgment, concluding that Carnival lacked notice of the danger but need not reach that issue because it found that Carnival had no duty warn Mrs. Carroll of the allegedly dangerous condition because it was open and obvious]. [***]

***Mrs. Carroll had to prove that (1) Carnival had a duty to protect her from a particular injury; (2) Carnival breached that duty; (3) the breach actually and proximately caused her injury; and (4) she suffered actual harm. [c] With respect to the duty element, a cruise line like Carnival owes its passengers “a ‘duty of reasonable care’ under the circumstances.” *** We begin by analyzing Mrs. Carroll’s claim that Carnival negligently failed to warn her of a dangerous condition, and then evaluate her claim that Carnival negligently failed to maintain a safe walkway. *** The question, therefore, is whether a reasonable person would have observed the chair leg and appreciated the risk of walking through the narrow passageway under the circumstances. [fn]

The district court concluded that Carnival had no duty to warn Mrs. Carroll of the dangers associated with the walkway because the “placement of deck chairs on an open deck, on a clear and sunny day, was an open and obvious condition.” In reaching this decision, the *1265 district court relied on Mrs. Carroll’s deposition testimony that she could have seen the chair leg had she looked down. The district court also relied on Mrs. Carroll’s testimony “that she did not walk behind her husband because the area narrowed, as her husband explained, but rather, because ‘you do that.’” But there was also evidence in the record—which the district court did not acknowledge—that Mrs. Carroll was forced to walk behind her husband after passing the first lounge chair because the walkway narrowed. Mrs. Carroll testified that, as a result, her view was blocked by her husband, who has a large profile, so she could not see the foot of the lounge chair that she tripped on nor around the curve of the walkway.

In our view, the district court erred by crediting some statements by Mrs. Carroll—which favored Carnival’s open and obvious argument—over her other statements that she was forced to follow behind her husband due the layout of the chairs and the narrowness of the walkway. Viewing the facts in the light most favorable to Mrs. Carroll, as we must, the record supports an inference that a reasonable person in Mrs. Carroll’s circumstances would not have observed the chair leg obstructing her path. There is a genuine dispute of material fact as to whether the danger associated with the walkway was open and obvious. After concluding that Carnival had no duty to warn Mrs. Carroll because the allegedly dangerous condition was open and obvious, the district court stated that it need not decide whether Carnival had actual or constructive notice of the condition. It nevertheless determined that Carnival lacked such notice. In reaching this conclusion, the district court again failed to view the evidence in the light most favorable to Mrs. Carroll and overlooked evidence in the record from which a reasonable jury could find that Carnival had notice. [fn]

Evidence that a ship owner has taken corrective action can establish notice of a dangerous or defective condition. See Guevara, 920 F.3d at 720–22 (holding that a warning sign alerting passengers to “watch [their] step” was sufficient to create an issue of material fact on whether the cruise ship had notice of the dangerous nature of the step down); Sorrels, 796 F.3d at 1288 (holding that a ship employee’s testimony that the ship would sometimes post a warning sign on the pool deck after it rained was enough to create an issue of material fact on whether there was notice that the deck could be slippery when wet). Here, there is evidence reflecting that Carnival took corrective measures to prevent people from tripping over the lounge chairs in the walkway on Deck 11.

*1266 For example, Mrs. Carroll presented evidence, including the testimony of one of Carnival’s employees, that if the lounge chairs were arranged in the “lay-flat position,” rather than upright, they would protrude further into the walkway—making the walkway even narrower. As a result, Carnival required them to be set up in the upright position, and employees regularly patrolled the area to fix the chairs. Specifically, one of Carnival’s pool deck supervisors, Viktor Symotiuk, testified that the lounge chairs on Deck 11 were supposed to be arranged in the upright position, and he was instructed (and trained other employees that he supervised) to make sure that the chairs were not protruding into or blocking the walkway. Although he testified that a lounge chair may be used in the lay-flat position if it is occupied, he also stated that “[y]ou never leave the chair unattended and flat in that area.” He further acknowledged that “[i]f the lounge chair is set on the passenger walkway, it would be an obstruction[ ], it’s a reason why a person can get injured.”

The district court relied on the deposition of another pool deck supervisor, Denys Stavyts’ky, who testified that that the chairs could be set up in either the upright or lay-flat position. But the conflict in the testimony of Mr. Symotiuk and Mr. Stavyts’ky demonstrates that there is a dispute of material fact, making summary judgment inappropriate.^[20] [***]

As in Guevara and Sorrels, a reasonable jury could view this testimony as evidence that Carnival has taken corrective measures—i.e., adopting a policy of keeping the chairs in-line and/or in the upright position and instructing employees to ensure that they are not blocking the walkway—due to a known danger. This is enough to withstand summary judgment on the issue of Carnival’s notice.

In sum, there were disputes of fact on both the obviousness of the condition and Carnival’s notice of the danger. The district court therefore erred in granting summary judgment on Mrs. Carroll’s failure to warn claim.^[21]

The district court appears to have concluded that Carnival was entitled to summary judgment on both Mrs. Carroll’s failure to warn and negligent maintenance *1267 theories because of the open and obvious nature of the condition. The district court reasoned that it need not reach notice after determining that the condition was open and obvious, suggesting that its decision on the latter was dispositive of the entire case. That initial conclusion, however, should not have ended the analysis for Mrs. Carroll’s negligent maintenance claim.

As Mrs. Carroll correctly argues, Carnival may still be liable for maintaining a dangerous condition even if the danger was obvious. The open and obvious nature of a dangerous condition negates liability for failure to warn. *** We have not squarely addressed, however, whether the open and obvious nature of a dangerous condition also bars liability for a maritime negligent maintenance claim. *** Thomas J. Schoenbaum, Admiralty & Maritime Law § 5:11 (6th ed. 2018) (“[T]here is a duty to warn passengers only of dangers that are not apparent and obvious. [The court concludes that the open and obvious nature of a dangerous condition does not bar a claim against a shipowner for negligent failure to maintain safe premises.]

Mrs. Carroll presented evidence creating a genuine dispute of material fact as to whether Carnival negligently maintained an unsafe walkway. This included an affidavit from her expert, Mr. Jaques, who opined that the width of the walkway would have been below industry standards if the chairs were in the lay flat position. This testimony is relevant in determining whether Carnival’s conduct fell below the standard of care. See, e.g., Sorrels, 796 F.3d at 1282 (“[E]vidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence … Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, is one of the factors the trier of fact may consider in applying the standard of care.”) (citation and internal quotation marks omitted).

According to Mr. Jaques, the maximum amount of room possible in the walkway was 35–36 inches if the lounge chairs were in the upright position and pushed up against the glass wall of David’s Steakhouse. If the lounge chairs were in the lay-flat position, however, the width of the walkway would be 28 ½ inches if the chairs were only two inches from the glass, and between 23 and 25 inches if the chairs were approximately six inches from the glass. If some of the chairs were in the lay flat position or pulled out a few inches, Mr. Jaques opined that the walkway would violate industry standards, including but not limited to the ADA standards, which require “a clear width of not less than 36 inches[.]” D.E. 49 at 37.

The record further reflects that there are disputes of material fact regarding whether the chairs were in the upright or lay-flat position at the time of the accident, and whether the chairs were in line or out *1270 of position. For example, both Mrs. and Mr. Carroll testified in their depositions that at least some of the deck chairs were in the lay flat position. Mrs. Carroll also testified, however, that at the time of the accident the chairs “weren’t messed up.” In contrast, Mr. Carroll testified that the chairs were not “orderly,” explaining that three or four of the chairs were “out of position” and “were pulled back from the glass several feet[.]” He explained that the chairs “were in the walkway,” which he described as being “more like an obstacle course,” and estimated that the width of the walkway was about 20 inches.

A reasonable jury could find that at least some chairs were in the lay-flat position and out of order, and thus conclude—in conjunction with Mr. Jaques’ testimony—that Carnival negligently maintained an unsafe walkway that fell below industry standards. The district court therefore erred in granting summary judgment on Mrs. Carroll’s negligent maintenance claim.

We reverse the district court’s grant of summary judgment in favor of Carnival and remand for further proceedings consistent with this opinion.

Note 1. While maritime law is applicable here, it adopts the general principles of tort law with which you are gaining familiarity.

Note 2. Given that this is a case concerning Carnival’s duty to Carroll, why does the court discuss the conduct of both parties, thus impliedly addressing breach of duty?

Note 3. The “open and obvious” defense pertains to premises liability as well as any claim arising from a failure to warn. How obvious does a risk factor or danger have to be for it to be deemed “open and obvious”? Do you think age, cognitive ability, education or language should matter to whether someone understands risks to be “obvious”?

In a footnote omitted from the opinion, the court clarifies its open-and-obvious standard:

“We have repeatedly acknowledged and applied this reasonable person standard in unpublished maritime decisions. See, e.g., [c] Horne v. Carnival Corp., 741 F. App’x 607, 609 (11th Cir. 2018) (“A cruise line does not need to warn passengers or make special arrangements for open-and-obvious risks…. In determining whether a risk is open and obvious, we focus on ‘what an objectively reasonable person would observe and do[ ] not take into account the plaintiff’s subjective perceptions.”) (internal quotation marks and citations omitted) [c].”

However, duty is determined as a question of law and the “open and obvious” defense is often used to defeat a claim of duty. Are determinations of “open and obviousness” better suited to fact-based adjudication of the reasonable person’s understanding of the risk? Or should truly “open and obvious” hazards be dealt with as a matter of law, in keeping with the categorical, higher-level determinations of duty?

Note 4. How does the court deal with the plaintiff’s testimony relative to the reasons why she walked behind her husband? What significance might that have socioculturally and legally?

Duties Determined by Type of Harm

Pure Economic Losses (no duty) vs. Pure Emotional Losses (duty in certain cases)

Purely Economic Losses. Despite the modern view that people have a general duty to refrain from conduct that will foreseeably cause physical harm to others, there is no duty to refrain from conduct that would cause purely economic losses. This is one way in which tort law has policed its scope. By refusing recovery for losses that are purely economic, tort law forces parties to find alternatives in private ordering such as contracts and home, auto, or business interruption insurance. These alternatives are deemed better suited than tort law to protect against certain kinds of harms and risks. Consider whether these private ordering alternatives serve equally well all entities potentially harmed by tortious conduct.

Purely Emotional Losses. At common law, recovery in tort law was generally unavailable or extremely limited for losses that were purely emotional. This rule has been eroded over time, as is reflected by the introduction of torts that make severe emotional distress a cognizable injury under certain circumstances, namely, IIED, NIED, or Negligent Infliction of Emotional Distress or both. You have already learned about the challenges of prevailing with IIED claims, in Module 2. While in most jurisdictions plaintiffs can recover for purely emotional losses under negligence, the challenges for plaintiffs are usually even greater than those posed by IIED claims.

Most courts are reluctant to allow recovery for NIED, for several reasons. First, emotional distress without any accompanying physical harm is usually ephemeral and may be difficult to measure or prove. Second, the scope of liability seems potentially limitless: if an accident causes a gruesome injury, the tortfeasor could potentially be liable to a large number of people who witnessed it if all bystanders were eligible to sue for the distress they suffered. Third, there is a concern that NIED claims may reflect attempts to use private insurance policies strategically. Most insurance policies have exclusions for intentional torts but include negligence claims. Thus, by characterizing conduct causing an emotional injury as negligent rather than intentional, a plaintiff could tap into significant resources that might not otherwise be available.

The rules that shape NIED vary greatly by state, yet they consistently create hurdles or outright bars for plaintiffs. Among the many different approaches employed by the states, four common categories can be identified: (1) states that follow some version of the “physical impact rule”; (2) states that require that plaintiffs have been in the “zone of danger”; (3) states that apply the “relative bystander” rule; (4) states that apply foreseeability analysis and limit recovery to when a defendant ought to have anticipated causing emotional distress to people like the plaintiff.

The physical impact rule bars recover for claims of NIED based on witnessing negligent injury to another unless the plaintiff has suffered a physical impact or injury in the same incident. The impact itself could be minor but it suggests that the plaintiff was close and directly affected by the tortfeasor’s injury of the other person.

The zone of danger rule permits recovery only when the plaintiff was in the zone of physical danger created by the defendant’s tortious conduct, and this may be defined in terms of either proximity in space or time closeness of familial connection or both. Proximity may be used as a term of art, therefore, that means not just physically nearby, but also close in terms of relationships the law is especially intended to protect.

The relative bystander rule requires that the bystander whose claim depends on having witnessed the injury to another be related in some way, whether through marriage or other familial relation. It may also require proximity in space and or immediacy in time such that the claim depends on having been near to and aware of a loved one or family member’s suffering while that person experiences the physical injury caused by the defendant.

These limits—physical impact, proximity within the zone of danger, and foreseeability—significantly narrow the scope of the tort. They do so by using the element of duty as a gatekeeping mechanism.

Contreras v. Carbon County School District # 1 et al, Supreme Court of Wyoming (1992)
(843 P.2d 589)

This case involves a claim for damages resulting from personal injury caused by a playground accident at Pershing Elementary School. Appellants James Contreras, Brenda Contreras and Odorico Contreras appeal the order granting judgment on a jury verdict for defendants-appellees, and denying their motion for a new trial. At issue is whether the trial court properly granted partial summary judgment on appellants’ negligent infliction of emotional distress claim [***]

We affirm. [***]

January 25, 1989, was a cold, blustery day in Rawlins, Wyoming. The weather that morning did not keep about 150 to 200 children from gathering, as they often did, outside Pershing Elementary School to play in the school playground before school began. The children were supervised by two school employees, appellees Belinda Wells and Kathleen Shamion. The playground at Pershing Elementary was divided into two segments. The west end, with swings and other playground equipment, was where the little children played together. The east, or “high activity” end, was where the older children played. This segregation of the playground was established mostly by convention and the tendency of children to play with those their own age. There was no physical barrier of any sort between the high-activity area and the area to the west of it where the younger children played, although the playground supervisors did try to keep the younger children out of the high-activity area.

In the high-activity area there was a football field marked out in white lines. On the morning in question, several fifth-grade boys were playing their daily game of football on the field. They had been instructed to keep within the white lines. One of the boys, Chuck Juare, was running backwards to catch a pass when he collided with appellant James Contreras. James was then seven years old and in the first grade. James was knocked off his feet, and Chuck fell on top of him. Another fifth-grade boy, Nick Armijo, was shadowing Chuck in the game. After Chuck fell, Nick tripped over Chuck and James and fell on top of them.

Mrs. Wells, Mrs. Shamion, and the school principal, Robert Johnson, soon arrived at the spot where James Contreras lie crying and in pain. James repeatedly told Johnson that his leg hurt. After ascertaining that the child had no back, neck or head injuries, Johnson decided to take him indoors because of the cold. He carried James about 200 feet, first into the school building and then into the school office. Johnson placed James on a nurse’s cot in the office. Mr. Johnson’s secretary called James’ mother, appellant Brenda Contreras, to inform her that her son had been hurt. Mrs. Contreras drove quickly to the school. When she got out of her car in front of the school building, she could hear her son crying. She followed the sound of crying to the office, where she discovered her son lying on the cot in intense pain. His crying disturbed her so much that soon she too was crying. Mr. Johnson asked Mrs. Contreras whether she wanted an ambulance called. She said that she did.

When the paramedics arrived, they cut the leg off James’ jeans to observe his injuries. They discovered that James had an inverted right femur, which is a very painful fracture of the longest bone in the human body. The femur in James’ leg was *592 visibly twisted toward the other leg. Mrs. Contreras was told that her son’s leg was broken. James was taken to the hospital in an ambulance, where he was fitted with a body cast which he wore subsequently for two and one-half months.

James, his mother and his father all filed suit against Carbon County School District No. 1, Mrs. Wells, Mrs. Shamion, Robert Johnson, Chuck Juare and Nick Armijo. In addition to claims for medical expenses, home health care provided, and compensation for James’ pain and suffering, Brenda Contreras requested in the complaint damages for the emotional distress she incurred at seeing her son in severe pain and worrying that he might be permanently deformed by the injury. The trial court entered judgment against Mrs. Contreras on her emotional distress claim. Nick Armijo was never served with process, and the claim against Chuck Juare was dismissed after he reached a settlement with the plaintiffs. The remainder of the claims were allowed to go to the jury. After trial, the jury returned a verdict in favor of the defendants on all claims.

[***][A]ppellants challenge the trial court’s finding that an emotional distress claim is precluded by our decision in Gates v. Richardson, 719 P.2d 193 (Wyo.1986).

[***] In Gates v. Richardson, 719 P.2d 193 (Wyo.1986), we recognized the tort of negligent infliction of emotional distress. In order to avoid burdening our court system with an overbroad theory of liability, we placed limits on possible recovery under that cause of action. We held that only those plaintiffs could recover: (1) whose kinship to the accident victim would permit them to bring a wrongful death action; (2) who observed the infliction of serious bodily harm or death, or observed the serious bodily harm or death shortly after its occurrence but without material change in the condition or location of the victim; and (3) whose loved one did, in fact, sustain death or “serious bodily injury” as defined in the Wyoming Criminal Code. Gates, 719 P.2d at 198–99. The trial court granted summary judgment here on appellants’ failure to meet the second element of the Gates test, the immediacy of the observation.

Wyoming is one among a small number of states which allows recovery for the emotional distress a plaintiff experiences when she observes a loved one seriously injured or dead after the injury has actually occurred. [c] Our immediacy test allows some time to elapse between the time of injury and the time of observation. Once the victim’s condition or location has materially changed, however, the moment of crisis for which recovery is allowed is deemed to have passed, regardless of the brevity of time which has elapsed since the accident. Shock or emotional distress may occur after this point, but it is no longer compensable.

If this rule seems harsh, we must point out that Wyoming follows a more liberal course than do many jurisdictions, including California, whose landmark case of Dillon v. Legg, 68 Cal.2d 728, (1968) so heavily influenced our adoption of the modern version of the tort. Gates, 719 P.2d at 195. While the California Supreme Court’s position in Dillon was at the forefront of the law, that court, refining Dillon, recently rejected an emotional distress claim by a woman who arrived at an accident scene and found her bloody, unconscious son lying in the roadway, because she did not actually witness the accident. Thing v. La Chusa, 48 Cal.3d 644 (1989). This is a much harsher result than our rule requires. In fact, the dissent in Thing cited language from Gates as an example of the more liberal rule that California should have adopted. Thing, 257 Cal.Rptr. at 892–93 [***].

Our broader immediacy rule, which allows the plaintiff to recover if she observes the injury shortly after it occurs without material change in the attendant circumstances, was adopted from the Massachusetts case of Dziokonski v. Babineau, 375 Mass. 555 (1978). Gates, 719 P.2d at 199. Massachusetts expanded the Dziokonski rule early on to include emotional distress claims predicated on viewing the injured person at the hospital rather than at the scene. Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980). On this point, we must decline to follow the Massachusetts rule. The shock received on seeing an injured loved one in a hospital setting, or lying on a cot in a principal’s office, is of a different quality than coming upon him or her at the scene of the accident. In our view, Ferriter over-emphasized the factor of whether chronological time had elapsed since the accident and under-emphasized the circumstantial factors under which the observation was made.^[22]

Turning to the circumstances of this case, Mrs. Contreras did not observe the infliction of her son’s injuries. She did see him in pain shortly after the accident. However, he had been removed to the principal’s office and was lying on a cot at the time. There had, therefore, been a “material change” in his location sufficient to mitigate the shock of the accident. While it is true that seeing her son’s injuries must have been extremely distressing to Mrs. Contreras, a victim’s loved ones are not entitled to recover for the emotions created by every shocking or upsetting injury to the victim, only to those which fall within the limitations of the cause of action as we have recognized it. See Thing, 257 Cal.Rptr. at 879–80. We therefore hold that Mrs. Contreras did not, as a matter of law, state a claim for negligent infliction of emotional distress because she did not observe the accident or observe the victim in substantially the same location and condition as when the accident occurred. [***]

Note 1. Descriptively, what facts would have needed to change in order for Mrs. Contreras to recover for the shock and upset of her son’s injuries?

Note 2. Normatively, do you think the court draws the right line in denying recovery on these facts? Would it matter to your analysis if her son had died versus being injured?

Note 3. What consequences can you imagine to a rule in which the parents of children severely injured at their (public) schools can sue over their emotional distress pertaining to those injuries even when not present? Might some so-called “helicopter” parents begin attending recess? Would legislatures be forced to fund tort liability at schools (and might that lead to some legislatures’ defunding schools to a certain extent)? Might schools be optimally incentivized to maintain safe playgrounds and supervise play times? Are schools likely to achieve a balance that makes children, parents, and legislators happy?

Note 4. Physical Impact Rule, A Deeper Dive. At common law, the general rule was that claims for emotional distress could not succeed unless they were accompanied by physical harms. Thus the first hurdle to the creation of a claim for NIED was the abrogation or modification of the “physical impact rule.” In Falzone v. Busch, 45 N.J. 559, 561 (1965), Mabel Falzone, was in the car next to her husband, parked lawfully, when her husband was struck by the defendant’s car veering negligently across the highway. She perceived it and it came “so close to plaintiff as to put her in fear for her safety.” Although it had not struck her and thus her claim did not satisfy the physical impact rule, the court permitted recovery on the grounds that such impact had been possible. It was thus reasonable to fear the impact and credit the ensuing emotional distress. In Portee v. Jaffee, a mother never feared for her own physical harm or impact but suffered emotional distress when her child died tragically and slowly before her eyes. The trial court, following Falzone, ruled against the plaintiff since she had faced neither physical harm nor probable or imminent contact. The Supreme Court reversed:

“Plaintiff’s seven-year-old son, Guy Portee, resided with his mother in a Newark apartment building. Defendants Edith Jaffee and Nathan Jaffee owned and operated the building. On the afternoon of May 22, 1976, the youngster became trapped in the building’s elevator between its outer door and the wall of the elevator shaft. The elevator was activated and the boy was dragged up to the third floor. [fn] Another child who was racing up a nearby stairway to beat the elevator opened it, saw the victim wedged within it, and ran to seek help. Soon afterwards, plaintiff and officers of the Newark Police Department arrived. The officers worked for four and one-half hours to free the child. While their efforts continued, the plaintiff watched as her son moaned, cried out and flailed his arms. Much of the time she was restrained from touching him, apparently to prevent interference with the attempted rescue. The child suffered multiple bone fractures and massive internal hemorrhaging. He died while still trapped, his mother a helpless observer.” Portee v. Jaffee, 84 N.J. 88, 91 (1980)

As the court notes in Contreras, California and Massachusetts followed slightly different trajectories, but all courts facing such claims have sought to find a balance between permitting some without opening the floodgates to “trivial” claims. Are the factors you see in the analysis thus far persuasive?

Note 5. Critiques of NIED’s Various Tests. Many have criticized elements of the various tests for NIED. For instance, they maintain that the “Relative Bystander rule” provides no relief for bystanders who witness the suffering of non-familial loved ones even though it is often far more distressing to lose (or witness injury to) a beloved friend than it might be to experience the same with respect to an estranged family member or long-lost distant cousin. Nonetheless, courts that apply the test have tended to do so in a rigid, formalistic way.

Should courts adopt a rule that reflects the growing awareness of the social importance of friendships in society? See e.g. https://www.theatlantic.com/family/archive/2020/10/people-who-prioritize-friendship-over-romance/616779/

Other critics lament the rather technical (and sometimes trivializing) nature of the “proximity” and “immediacy” requirements applied as part of the zone of danger test (and sometimes also under the relative bystander test, which may require “contemporaneous presence”). For instance, if a person were present but sleeping through an injury, or looking away from the scene at the precise moment of injury, some courts would deny recovery (depending on the precise nature of the claim).

How much should legal technicalities matter in delineating the scope of liability for the negligent infliction of losses that are purely emotional? Do the tests’ traditional limits reflect outdated notions of what it means “to be present”? How should they be applied in our increasingly “virtual” era? Would it satisfy the proximity requirement, for instance, to be on the phone with a family member who was dying in an accident negligently caused by the defendant? (Courts have come out differently on this question.) Would being on FaceTime or Zoom “count,” that is, satisfy the proximity or contemporaneous presence requirements? How about if the plaintiff witnessed harm to their loved one via livestream from a “nanny cam” in the plaintiff’s home? Recently, an appellate case in California answered in the affirmative.

Initially, the trial court ruled that the Ko family could not state a cause of action for NIED after witnessing their in-home caregiver, Thelma Manalastas, abusing their disabled son while the parents were out of the home. They observed the abuse from their smartphone, which captured video and audio on their nanny cam (a device of some sort that records activity in a child’s room or elsewhere in a home, designed to surveil childcare providers). The Kos brought suit against Manalastas for battery, assault and negligence for their son (who died during the pendency of the litigation) and on their own behalf for NIED, suing Manalastas’ employer, Maxim Healthcare. Since the parents weren’t home during their child’s abuse, the trial court held that they failed to satisfy California’s requirement that a bystander be both present at the scene of the injury-producing event and aware that it is causing injury.

On appeal, the Kos argued that their “virtual presence” during their son’s abuse should satisfy the contemporaneous presence element required in California and the court agreed, reversing the trial court’s decision. Ko v. Maxim Healthcare Servs., Inc., 58 Cal. App. 5th 1144, 1146–47, (2020), as modified (Jan. 14, 2021), review denied (Apr. 21, 2021). The Supreme Court’s reasoning was grounded in an awareness of technological change: “In the three decades since the Supreme Court [of California] decided Thing [v. La Chusa (1989) 48 Cal.3d 644, 668, the controlling precedent], technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio.” Id. at 1147. The court rejected the defendant’s attempts to downplay the significance of these social and technological changes in a thoughtful opinion that is worth quoting at length:

Maxim argues that “remote surveillance is nothing new, nor is watching events happening live with video and audio,” and contends that “[i]ncreased convenience does not mean we are any more able to be present in places where our bodies are not than we were in 1989.” Maxim and Manalastas contend that technology allowed live broadcasts decades ago, pointing to the live broadcast of the fatal shooting of Lee Harvey Oswald in 1963, the 1986 televised explosion of the space shuttle Challenger, and the use of closed-circuit television in courtrooms prior to Thing. But the Supreme Court in 1989 could not have reasonably anticipated the technological advances that now allow parents (and other family members) to have a contemporaneous sensory awareness of an event causing an injury to their child while not in physical proximity to the child.

Certainly live television and remote video surveillance existed in 1989, but numerous technological, regulatory, and commercial developments in image capture (such as an Internet-enabled nanny cam), transmission (including the streaming of audiovisual data over the Internet and mobile data networks), and reception (such as on pocket-sized smartphones with high resolution screens) were necessary to create a world where parents could contemporaneously observe their at-home child while attending a basketball game. Indeed, the ubiquity of home surveillance systems and videoconferencing applications since the advent of Internet-enabled smartphones has manifestly changed the manner in which families spend time together and monitor their children. (See, e.g., Riley v. California (2014) 573 U.S. 373, 385 [“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from [the defendant] was unheard of ten years ago; a significant majority of American adults now own such phones. [c] [Such] phones are based on technology nearly inconceivable just a few decades ago ….”].)

In various areas of the law affecting traditional conceptions of physical presence, the courts have been called upon to interpret longstanding precedent in light of new technologies. [***] Where plaintiffs allege they were virtually present at the scene of an injury-producing event sufficient for them to have a contemporaneous sensory awareness of the event causing injury to their loved one, they satisfy the second Thing requirement to state a cause of action for NIED. Just as the Supreme Court has ruled a “plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative” [c] so too can the Kos pursue an NIED claim where, as alleged, they contemporaneously saw and heard Landon’s abuse, but with their senses technologically extended beyond the walls of their home.

Here, as alleged, the Kos were virtually present through modern technology that streamed the audio and video on which they watched Manalastas assaulting Landon in real time, and thus “personally and contemporaneously perceive[d] the injury-producing event and its traumatic consequences.” (Thing, supra, 48 Cal.3d at p. 666.) Based on these allegations, the Kos have stated facts sufficient to constitute a cause of action for NIED. (Thing, supra, 48 Cal.3d at pp. 666, 668.)

The judgment is reversed. The matter is remanded with directions to the trial court [***]. The Kos are to recover their costs on appeal. Id. at 1157–60.

Based on what you have learned about NIED so far, what do you think of this reasoning, descriptively and normatively?

Note 6. Culpability. Negligent infliction of emotional distress differs from IIED in having a much lower conduct standard: it requires only carelessness, not intentional action. Notwithstanding case law to the contrary, extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress. Taggart v. Costabile, 131 A.D.3d 243, 255 (Sup. Ct. App. Div. 2d Dept., NY, 2015).

Summary of Types of Duty:

• General Duty: the modern rule, applicable in most cases: everyone has a duty to refrain from conduct that will cause foreseeable harm
• Duty as a Function of Foreseeability: a duty arises when there is harm to a foreseeable person or a foreseeable harm that can be created or increased through one’s actions (Walls v. Oxford Management and Tarasoff; Palsgraf though there the court found no duty)
• No Duty: there is no duty to “rescue” or take action to help others relative to harms one didn’t create or risks one didn’t increase (Harper v. Herman; Sidwell v. McVay)
• Duty Based on Relationship or Undertaking: a duty arises when there is a special relationship between parties (the special relationship may be contractual, familial or social (recall wingman liability as in Farwell v. Keaton); or the special nature of the therapist’s work as in Tarasoff); or when a party volunteers (a “gratuitous undertaking”) and thus creates a duty
• Duties of Common Carriers or Innkeepers: special duties attach to the activities of common carrier and innkeepers because of the control and power they exercise over the passengers or customers temporarily in their custody (Bullock, Maison)
• Duty Related to Premises Liability: owners and possessors of land usually owe a duty of care towards entrants on their land but what that requires of them depends on the jurisdiction (Carroll v. Carnival); the majority of jurisdictions refer to the status of the entrant to specify the level of care required whereas the minority approach applies “reasonableness” (Rowland v. Christian)
• Duty Determined by Type of Harm: in limited cases involving purely emotional harms, courts will determine whether a duty exists based on a restrictive set of factors varying by jurisdiction (Contreras v. Carbon County); there is no duty to compensate for purely economic losses caused by one’s conduct