Chapter Objectives:: Tort Law For Paralegals, Fifth Edition (C) 2016 by Neal R. Bevans

Chapter 5
Duty
 Chapter Objectives:
 Describe how a duty arises and the legal
consequences when it does
 Describe how certain special relationships
give rise to a higher standard of care
 Explain the concept of “premises liability”
 Explain the different duties imposed on lay
persons, professionals, and specialists
 Explain the “attractive nuisance” doctrine
Tort Law for Paralegals, Fifth Edition
(c) 2016 by Neal R. Bevans
The Legal Definition of Duty
 ‘Duty’ refers to a person’s obligation to

conform his conduct to a particular
standard of care.
 It is often defined as an obligation to
protect someone else from an
unreasonable risk of harm.

Duty  Breach  Causation 
Damages
 Without duty, you cannot move on to the

other three elements of a negligence
claim

Standard of Care
 We often use the terms “standard of

care” and “duty” interchangeably.

Standard of Care
 “Duty” is why; “standard of care” is how.

When Does a Duty Arise?
 A duty arises when one person has the power
to injure another and can only avoid injuring
this other person by acting in a reasonable,
prudent and cautious way.
 Here is the most common question the courts
ask to determine duty:
 Was the injury to the plaintiff reasonably
foreseeable?

Foreseeable
 The outcome that a person should have

known or been able to anticipate or
predict based on certain facts.

Using Formulas to Determine
Duty
 The reality of most cases does not lend
itself to such rigidity, no matter how
appealing such rules seem at first
glance.

Judge Learned Hand’s
Famous Formula
 P X L > B = duty.
 If the probability (P) of the defendant’s
harm multiplied by the loss (L) exceeded
the burden (B) on the defendant burden
to take precautions to prevent the harm.

Duty Does Not Depend on
Victim’s Identity
 The law of duty rests on the defendant
and will be imposed to protect any
eventual victim.

Duty as a Legal Obligation
 The law of civil injuries is a not mirror

image of society’s morality.

Duty Does Not Arise from
Habit or Custom
 Simply because it is someone’s habit to
do a specific thing does not create a duty
in that person to continue doing it.

Custom
 However, custom can sometimes create

a duty.
 Custom -- A practice that has acquired a
legal status over time such that failing to
follow the practice would result in
liability.

Duty Arising from Professional
Status
 Non-professionals, or lay people, do not
have a duty that arises simply because
of their education or training.
 However, there are many professionals
who have a duty imposed on them by
law simply because of their advanced
training.

What is the Standard of Care
for a Professional?
 Most jurisdictions define the legal duty
as the reasonable degree of skill,
knowledge and training that other
professionals under similar
circumstances in the professional
community would exercise.

Specialists
 Specialist -- One who has become an

expert in a particular field either through
education, training or both.

How the Courts Determine
Duty
 This determination is usually a balancing
act between the interests of society and
the interests of the injured plaintiff.

Relationships Determine Duty
 ‘Relationship’ refers to the interaction

between the parties.

Special Relationships
 There are certain relationships that by

their very nature impose an obligation on
one person to the benefit of another.
 A parent owes a child a duty to protect it
from foreseeable injury and to provide a
safe environment.

Special Relationships Giving
Rise to Duty
 Employers and  Parent and child
employee  Spouse and spouse
 Hotel/motel and  Day care and child
guest  Person who created
 Landlord and tenant a danger and
 Carrier and potential victim
passenger
 Student and teacher

Duty from a Social
Relationship
 Generally, there is no duty arising from a
social relationship.
 There can be Social Host Liability,
however.

Social Host Liability
 Under this doctrine, a host who furnishes

alcohol (or other drugs) to an obviously
intoxicated person may be liable for the
actions of that person.

Premises Liability
 People who possess land have a special duty

to the people who visit their property.
 This duty arises out of the peculiar nature of
land itself.
 Since it is fixed and immovable, a dangerous
condition could exist on land and a visitor
wouldn’t necessarily know about it.

Duty Is on the Possessor, Not
Owner
 These duties are imposed by law on the person
who is in possession of the land, not
necessarily the owner.
 The reason that the law imposes this duty on
the current possessor is because this person is
in the best position to know about potential
problems and can take action to protect others
from them.

Classifying Visitors
 People who come to the property fall into

one of three possible categories:
Trespasser, Licensee and Invitee.

Trespassers
 The rule under the common law is that

there is no duty to trespassers.

Exceptions to the General Rule of
No Duty to Trespassers
 The Attractive Nuisance Doctrine
 Rescue Doctrine

The Attractive Nuisance
Doctrine
 Courts developed this doctrine to
specifically address dangerous
conditions in areas that children would
naturally find enticing.

Elements of the Attractive
Nuisance Doctrine
 That the defendant has reason to know
that there is a dangerous condition on
his land (like a railroad yard) and that
children are likely to trespass there
 That the defendant knows that there is a
dangerous condition on the land and that
it poses an unreasonable risk of injury to
a child

Nuisance Doctrine
 That a young child, because of his or her lack
of maturity and experience, would not realize
how dangerous the condition actually was
 That the financial burden of making the
condition safer is slight in comparison with
the danger posed to a child


Nuisance Doctrine
 That the defendant failed to take reasonable

precautions to prevent a trespassing child
from being injured

Rescue Doctrine
 Like children, rescuers also receive

special protection under the law.
 The courts created the Rescue Doctrine
to address a public policy concern.
 The courts realized that not allowing a
rescuer to be protected under the law
might discourage people from rescuing
one another.

Classifying Visitors: Licensees
 The term “licensee” refers to a guest.

 This is a person who has come to the
premises for personal or social reasons,
not business.

Duty to Licensee
 The duty of a possessor to a licensee is

simply to warn of a dangerous condition.

Invitee
 An invitee is a customer or a client.

 This person has come to the premises
for some business purpose and is not
paying a social call.

Invitee
 The possessor owes the highest duty to

this person.
 The possessor must not only warn of
dangerous conditions, but also take
reasonable actions to make the
premises safe.

Determining Status
 The Economic Benefit Test

 Under this test, courts will consider a
person to be an invitee if the primary
reason for his presence is business with
the defendant.

Abnormally Dangerous or
Ultra-Hazardous Conditions
 In some situations, a defendant may be liable to
all three categories of visitors when he/she has
an abnormally dangerous condition on his
premises.
 An abnormally dangerous condition would be
keeping wild animals, storing dynamite or other
explosives, or any other condition that is
extremely dangerous.

Abolishing Categories
 Several states have abolished the

distinction between invitees and
licensees.

Guest Statutes
 These limit the duty of a possessor when

the person is a social guest or a
trespasser.
 The categories of invitee and licensee
continue to exist, but a statute limits the
type of action, or the amount of
damages, that an injured social guest
can bring against his host.

Duty to Third Parties
 The general rule about duty to third

parties is that a person does not owe a
third party any duty.
 The general rule that there is no duty to
third parties is slowly changing in many
jurisdictions to a duty to third parties
under certain, specific circumstances.

Tarasoff v. Regents of
University of California
 This case helped establish the duty of
certain professionals, such as
psychiatrists, to third parties.

Can a Defendant Waive His
Duty?
 Under certain circumstances, a
defendant can legally waive his duty to
another.
 These contracts are subject to strict
interpretation


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Chapter 5

 ‘Duty’ refers to a person’s obligation to

Tort Law for Paralegals, Fifth Edition

 Without duty, you cannot move on to the

Tort Law for Paralegals, Fifth Edition

 We often use the terms “standard of

Tort Law for Paralegals, Fifth Edition

 “Duty” is why; “standard of care” is how.

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The outcome that a person should have

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The law of civil injuries is a not mirror

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 However, custom can sometimes create

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Specialist -- One who has become an

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 ‘Relationship’ refers to the interaction

Tort Law for Paralegals, Fifth Edition

 There are certain relationships that by

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Under this doctrine, a host who furnishes

Tort Law for Paralegals, Fifth Edition

 People who possess land have a special duty

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 People who come to the property fall into

Tort Law for Paralegals, Fifth Edition

 The rule under the common law is that

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 That the defendant failed to take reasonable

Tort Law for Paralegals, Fifth Edition

 Like children, rescuers also receive

Tort Law for Paralegals, Fifth Edition

 The term “licensee” refers to a guest.

Tort Law for Paralegals, Fifth Edition

 The duty of a possessor to a licensee is

Tort Law for Paralegals, Fifth Edition

 An invitee is a customer or a client.

Tort Law for Paralegals, Fifth Edition

 The possessor owes the highest duty to

Tort Law for Paralegals, Fifth Edition

 The Economic Benefit Test

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Several states have abolished the

Tort Law for Paralegals, Fifth Edition

 These limit the duty of a possessor when