Tort Law: Duty
The element of duty establishes whether or not there is a legally recognized relationship between the defendant and the plaintiff. Duty obligates the defendant to act (or to refrain from acting) in a certain manner toward the plaintiff. Duty is often a policy-based determination and, thus, it is left to the judge to make the determination of whether a duty exists.
Below are some common examples and exceptions of where a duty exists:
Affirmative Acts (the duty to act) - a person is under no duty to take an affirmative act to held another person without some prior duty. However, once a person takes an affirmative act, regardless of whether it is tortious or not, and he knows or has reason to know that by his conduct he caused harm, he is under a duty to prevent such further harm. A person may also have a duty to STOP doing something in order to help another.
Undertakings (the duty to rescue) – once you begin a rescue, you have a duty to be reasonable. A person who begins or attempts a rescue or other activities for another’s protection, gratuitously or for consideration, has a duty to do so with a reasonable standard of care. However, a person must have undertaken to help a particular person, rather than a class of persons or the public at large.
Dangerous Third Parties (the duty to warn) – there is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless: a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct. The classic example here is a psychiatrist who has intimate knowledge that one of their patients will imminently cause harm to another.
Public Duty (duty of the government) – The Supreme Court decided in South v. Maryland, 59 U.S. 396, (1856) that local law enforcement has no duty to protect individuals, but only a general duty to enforce the laws. However, a public body may be liable to a particular person if that person has helped the police in its work, etc… in such a way as to put the person at risk (testimony, undercover work, court ordered protections, etc…).
Owners and Occupiers of Land (duty of landowners) – the duty owed by landowners to occupiers of his or her land will depend on how the occupiers are classified. The law classifies occupiers of land into three basic categories: trespasser, licensee, and invitee.
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