Negligence - Obligations to control the conduct of third parties

Learning Outcomes

After reading this article, you will be able to identify when a defendant may be liable in negligence for failing to control the actions of third parties. You will understand the general rule against such liability, the exceptions based on special relationships, the concept of foreseeability, and how these principles are tested on the MBE. You will be able to apply these rules to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand when a person or entity may be liable in negligence for harm caused by the actions of someone else. This includes:

• The general rule that there is no duty to control third parties.
• The exceptions where a duty arises due to a special relationship.
• The requirement of foreseeability of harm.
• The role of public policy and statutory duties.
• Application of these principles to common MBE fact patterns.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In which situation is a defendant most likely to owe a duty to control the conduct of a third party?
   1. A neighbor sees a stranger trespassing on a nearby property.
   2. A parent knows her minor child is likely to vandalize a neighbor’s car.
   3. A bystander observes a fight between two strangers.
   4. A store customer sees another customer shoplifting.
2. A hospital releases a psychiatric patient known to have violent tendencies. The patient later injures a third party. Under what circumstances may the hospital be liable?
   1. Only if the hospital promised to protect the third party.
   2. Only if the hospital had a special relationship with the third party.
   3. If the harm to the third party was foreseeable and the hospital had a duty to control the patient.
   4. Never, because the hospital cannot control patients after discharge.
3. Which of the following best describes the general rule regarding a duty to control third parties?
   1. There is always a duty to prevent foreseeable harm by others.
   2. There is no duty to control third parties unless a special relationship exists.
   3. Duty exists only if the defendant is a government official.
   4. Duty is determined solely by the foreseeability of harm.

Introduction

Negligence liability for the acts of third parties is a frequently tested area on the MBE. The general rule is that a person does not owe a duty to prevent harm caused by the conduct of another. However, there are important exceptions, especially where a special relationship exists between the defendant and the third party or the potential victim. Understanding when these exceptions apply is essential for answering MBE questions correctly.

Key Term: Duty to Control Third Parties The legal obligation to take reasonable steps to prevent foreseeable harm caused by the conduct of another person.

The General Rule: No Duty to Control Others

In negligence law, a person is generally not required to control the conduct of third parties to prevent harm to others. This means that, absent special circumstances, you are not liable for failing to prevent someone else from causing injury.

Key Term: Special Relationship A legally recognized connection between parties (such as parent-child, employer-employee, or landowner-invitee) that may create a duty to control or protect.

Exceptions: Special Relationships

A duty to control the conduct of a third party may arise if there is a special relationship between:

• The defendant and the third party (the wrongdoer), or
• The defendant and the potential victim.

Common examples include:

• Parent and minor child
• Employer and employee (within the scope of employment)
• Landowner and invitee
• Custodian and person in custody (e.g., hospital-patient, jail-inmate)

If such a relationship exists, the defendant may be required to take reasonable steps to prevent foreseeable harm.

Key Term: Foreseeability The quality of being reasonably predictable; in negligence, harm is foreseeable if a reasonable person would anticipate the risk.

Key Term: Public Policy Exception A statutory or judicially recognized exception to the general rule, often based on societal interests (e.g., mandatory reporting laws).

Foreseeability and Scope of Duty

Even when a special relationship exists, the defendant is only liable if the harm was foreseeable. Courts look at whether a reasonable person in the defendant’s position would have anticipated the risk of harm from the third party’s conduct.

Duty to Warn or Protect

In some cases, the duty to control includes a duty to warn potential victims. This is especially relevant in cases involving mental health professionals and threats of violence (e.g., the "Tarasoff" rule).

Statutory Duties

Sometimes, statutes impose duties to control or report the conduct of others (e.g., mandatory reporting of child abuse). Breach of such a statutory duty may result in negligence liability.

Worked Example 1.1

A daycare center knows that one of its employees has a history of aggressive behavior toward children. The employee injures a child during work hours. Is the daycare center liable for failing to control the employee?

Answer: Yes. The daycare center has a special relationship with both the employee (employer-employee) and the children (landowner-invitee). The harm was foreseeable, and the center had a duty to take reasonable steps to prevent it.

Worked Example 1.2

A psychiatrist learns that a patient has made credible threats to harm a specific individual. The psychiatrist does not warn the potential victim, and the patient later causes harm. Is the psychiatrist liable?

Answer: Possibly. If the jurisdiction recognizes a duty to warn or protect third parties in such situations, the psychiatrist may be liable if the harm was foreseeable and the psychiatrist failed to act reasonably.

Exam Warning

On the MBE, do not assume that foreseeability alone creates a duty to control third parties. Look for a special relationship or statutory duty before finding liability.

Revision Tip

When analyzing MBE questions, always ask: Is there a special relationship? Was the harm foreseeable? Was there a statutory or public policy duty?

Key Point Checklist

This article has covered the following key knowledge points:

• The general rule is no duty to control the conduct of third parties.
• A duty may arise if a special relationship exists between the defendant and the wrongdoer or the victim.
• Foreseeability of harm is required for liability.
• Statutory or public policy exceptions may create a duty.
• On the MBE, always check for special relationships and foreseeability before finding negligence liability for third-party acts.

Key Terms and Concepts

• Duty to Control Third Parties
• Special Relationship
• Foreseeability
• Public Policy Exception