Negligence - Obligations to control the conduct of third par...

Learning Outcomes

This article explains negligence duties to control the conduct of third parties, including:

• Identifying the baseline no-duty rule to act or control others, and articulating the policy reasons courts hesitate to impose broad duties.
• Distinguishing special relationships with wrongdoers versus victims, and determining when those relationships create affirmative duties to control, supervise, or protect.
• Applying foreseeability principles to define the existence, scope, and limits of any duty, especially where prior similar incidents or known dangerous propensities are described.
• Comparing duties to control or protect with vicarious liability, negligent hiring, negligent supervision, and negligent entrustment, and selecting the precise theory an exam question implicates.
• Evaluating fact patterns involving business–invitee, landlord–tenant, school–student, and common carrier–passenger relationships to decide whether reasonable protective measures were legally required.
• Analyzing Tarasoff-type scenarios, dram shop statutes, mandatory reporting laws, and other public policy–based duties that transform a no-duty situation into actionable negligence.
• Recognizing when voluntary undertakings, security programs, or custodial relationships expand obligations to warn, supervise, or intervene to prevent third-party criminal or tortious conduct.
• Practicing a structured, MBE-oriented approach to duty analysis that avoids the common trap of relying on foreseeability alone without a recognized duty source.

MBE Syllabus

For the MBE, you are required to understand negligence duties relating to harm caused by the conduct of someone other than the defendant, with a focus on the following syllabus points:

• The baseline rule that there is no duty to act or to control third parties
• Circumstances creating an affirmative duty based on special relationships
• Duties arising from a defendant’s relationship with the victim versus with the wrongdoer
• The role of foreseeability in defining the existence and scope of any duty
• Statutory and public policy–based duties (e.g., dram shop, mandatory reporting)
• How these duties interact with vicarious liability, negligent entrustment, and negligent supervision

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.

You will often see this as a duty-of-care issue: the plaintiff is injured by X but sues Y. Your task is to decide whether the law imposed an affirmative duty on Y to do something about X.

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.

On exam questions, this topic usually appears as a duty-of-care issue: the plaintiff sues one person (the defendant) for injury actually inflicted by someone else. Your task is to decide whether the law imposed an affirmative duty on the defendant to act to prevent the third party’s conduct.

Key Term: Affirmative Duty to Act
An obligation to take positive steps to aid, protect, or control others, as opposed to the usual duty merely to refrain from negligent conduct. Such duties arise only in limited, recognized situations.

This is a particular application of two core negligence themes:

• The distinction between misfeasance (actively creating a risk) and nonfeasance (failing to act). Ordinary negligence typically involves misfeasance; duties to control are about when the law will treat nonfeasance as actionable.
• The idea that foreseeability alone does not create duty. You must first find a legal source of duty (relationship, statute, or undertaking); only then does foreseeability define its scope.

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 is a specific application of the broader rule that there is no duty to rescue or to affirmatively act for another’s benefit.

Thus, absent special circumstances, you are not liable for failing to stop:

• A stranger from committing a crime
• A friend from driving drunk
• A passerby from injuring someone else

Courts are cautious about imposing broad duties to police others’ behavior. Such duties are considered burdensome, difficult to administer, and potentially limitless. Therefore, the starting point on the MBE is always:

• No relationship + no statute + mere foreseeability of harm from someone else’s conduct ⇒ no duty to control that person.

This no-duty rule applies even if the defendant could have acted at little cost and even if the harm was quite foreseeable in a lay sense. The law assumes that each person is primarily responsible for controlling their own conduct, and that the state (through the criminal justice system) bears the main burden of controlling wrongdoers.

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 a third party or to protect another from that third party.

On MBE questions, a common trap is an answer that says something like “Yes, because the harm was foreseeable.” Unless that answer also identifies a special relationship, a statute, or a voluntary undertaking, it is almost always wrong.

Exceptions: Special Relationships

A duty to control the conduct of a third party, or to protect another from that conduct, may arise if there is a special relationship either between:

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

A special relationship plus foreseeability is what turns the general no-duty rule “on.”

Special relationship with the wrongdoer

When the defendant stands in a position of authority or control over the third party, the law may impose a duty to use reasonable care to prevent that third party from causing harm. The critical ingredients are:

• The defendant has the ability to control the wrongdoer’s conduct, and
• The defendant knows or should know of the need to exercise that control (e.g., the person is dangerous, unstable, or likely to act negligently in a particular way).

Examples frequently tested on the MBE include:

• Parent and minor child:

  • Duty to exercise reasonable control to prevent the child from intentionally or recklessly harming others when:
    • The parent knows or should know of the child’s dangerous tendencies, and
    • The parent has the ability to control the child.
  • Mere parenthood is not enough; look for facts showing prior similar incidents, specific threats, or access to dangerous instruments (car, firearm, explosives).

• Employer and employee:

  • Duty to control employees acting within the scope of employment when the employer knows or should know of the need to exercise such control.
  • Related concepts include negligent hiring, negligent supervision, and negligent retention, where the employer fails to use reasonable care in selecting or monitoring employees.
  • Duty can exist both:
    • Prospectively, to prevent foreseeable harm by an obviously dangerous employee, and
    • Reactively, after the employer learns of complaints or prior incidents.

• Custodian and person in custody:

  • Jail–inmate, hospital–patient, school–student, or similar custodial settings.
  • The custodian must exercise reasonable care to prevent foreseeable harm that the person in custody may inflict on others, because the custodian has significant control and the individual’s liberty is already restricted.
  • Think about mental health facilities, nursing homes, juvenile detention centers, and residential care homes.

• Mental health professional and patient:

  • Some jurisdictions recognize a duty to take reasonable steps to control or restrain a dangerous patient, especially if a specific threat against an identifiable victim has been made.
  • On the MBE, the problem will usually tell you whether the jurisdiction recognizes this duty.

Key Term: Duty to Protect
A duty to take reasonable steps to guard another against the harmful conduct of third parties, which may include warning, securing premises, or contacting authorities.

Special relationship with the victim

A duty may also arise when the defendant has a protective relationship with the potential victim. These relationships often involve dependence, vulnerability, or reliance on the defendant for safety:

• Common carrier–passenger (e.g., bus company, airline)
• Innkeeper–guest
• Business–invitee (e.g., store–customer)
• School–student
• Landlord–tenant in some criminal-attack cases
• Employer–employee (as victim)

In these relationships, the defendant may have a duty to take reasonable precautions to protect the plaintiff from foreseeable criminal or tortious acts of third parties—such as providing adequate lighting, locks, or security, or warning about known dangers.

The duty here is usually one of reasonable protective measures, not a guarantee of safety. On the exam, the issue is whether doing nothing, or doing very little, was unreasonable given what was known about the risk.

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

Key Term: Public Policy Exception
A statutory or judicially recognized exception to the general no-duty rule, often based on societal interests (e.g., mandatory reporting laws, dram shop statutes).

Relationship-Based Duties in More Detail

It helps to group MBE fact patterns by which relationship is present. For each, track:

• What relationship exists?
• What did the defendant know (or reasonably should know)?
• What control or ability to protect did the defendant have?

Parent–child

• Duty: Reasonable efforts to supervise and control the child to prevent intentional or reckless harm when:
  • The parent knows or should know of the child’s dangerous propensities, and
  • The parent has the ability to control the child.
• Examples of triggering facts:
  • Prior violent episodes or vandalism
  • Specific threats (“I am going to beat up X tonight”)
  • Providing dangerous instruments (gun, car, fireworks) in light of such history
• Mere failure to “teach values” or to watch the child at all times is not enough; the MBE looks for clear notice and an opportunity to intervene.

Employer–employee (wrongdoer)

When the employee injures someone, analyze two separate questions:

• Is the employer vicariously liable under respondeat superior? (Was the employee acting within the scope of employment?)
• Did the employer independently breach a duty to control the employee by negligent hiring, supervision, or retention?

Key Term: Negligent Hiring or Supervision
A claim that an employer failed to use reasonable care in selecting or overseeing an employee, creating a foreseeable risk that the employee would harm others.

• Negligent hiring: Failing to screen an employee with known violent or criminal history for a job with public contact.
• Negligent supervision/retention: Ignoring repeated complaints or warning signs about an employee and continuing to put that employee in a position of danger to others.
• On the MBE, facts like “the store received several complaints that the security guard had assaulted customers” are signals of a potential duty to control.

Business–customer or landowner–invitee (victim)

• Duty: Take reasonable steps to protect patrons from foreseeable criminal acts of third parties on the premises.
• Typical precautions:
  • Adequate lighting and locks
  • Security guards in high-crime areas
  • Surveillance cameras or controlled access
• Courts consider:
  • Prior similar crimes on or near the premises
  • The level of crime in the neighborhood
  • The nature of the business (e.g., late-night gas station vs daytime bookstore)
  • The feasibility and cost of security measures

The more serious and frequent the prior incidents, the more likely it is that additional attacks are foreseeable and some protective duty exists.

Landlord–tenant

Many jurisdictions impose a duty on landlords to take reasonable precautions to protect tenants from foreseeable criminal attacks in common areas (hallways, stairwells, entry doors, parking lots):

• Provide or maintain locks, intercom systems, lighting, and secure doors.
• Respond to prior break-ins or assaults by improving security.

Inside a tenant’s own unit, the tenant typically bears more responsibility, but the landlord may still be liable for defects that permit criminals to enter (e.g., broken window locks reported and ignored).

School–student

Schools (especially elementary and secondary public schools) have a duty to supervise students and protect them from foreseeable harm inflicted by other students or outsiders while under school control:

• Duty applies during school hours, on school grounds, on school buses, and at school-sponsored activities.
• Common fact patterns:
  • Bullying or assaults by other students
  • Injuries by outsiders allowed to enter unsecured campus
  • Inadequate supervision during recess or physical education

Colleges may have a more limited duty, but the MBE most often focuses on primary and secondary schools.

Common carriers and innkeepers

Common carriers (buses, trains, airlines) and, in many jurisdictions, inns and hotels owe a heightened duty of care to their passengers or guests, which includes protection from third-party misconduct:

• Carrier–passenger: Must take reasonable steps to prevent assaults or theft by other passengers or strangers in stations or vehicles.
• Innkeeper–guest: Must take reasonable security measures (locks, lighting, sometimes security personnel) in hallways, parking structures, and entrances.

The historic “utmost care” standard for common carriers may appear in older cases; on the MBE, assume at least ordinary care but with a clear duty to take reasonable protective measures.

Custodial relationships (prisons, hospitals, residential facilities)

Where a person’s freedom has been limited and another entity has custody, the custodian’s duty to control or protect is strong:

• Prisons and jails: Duty to protect inmates from foreseeable assaults by other inmates or staff and to control dangerous inmates when released within a facility.
• Psychiatric hospitals and residential treatment centers: Duty to supervise patients and, in some jurisdictions, to take reasonable steps to protect others from dangerous patients.
• Residential care homes and nursing homes: Duty to protect vulnerable residents from abuse by staff or other residents.

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. Relevant factors include:

• Prior similar incidents or threats
• The third party’s known history or tendencies
• The nature of the facility or activity (e.g., psychiatric ward vs ordinary hospital floor)
• The likelihood and gravity of the harm compared to the burden of precautions
• Whether the plaintiff is within the class of persons exposed to the risk

Two points that are often tested:

• Foreseeability alone does not create a duty. You still must identify a special relationship, a voluntary undertaking, or a statute.
• Some courts treat foreseeability as part of duty, others as part of proximate cause, but on the MBE the outcome is the same: no liability where the plaintiff was an unforeseeable victim of an unforeseeable third-party act.

The general negligence rules about foreseeability also apply:

• No liability to an unforeseeable plaintiff (Cardozo’s approach in Palsgraf).
• Rescuers are treated as foreseeable plaintiffs—“danger invites rescue.”
• Some crime victims are foreseeable where the defendant’s negligence put them in a high-crime situation (e.g., negligently dropping a passenger off in a known dangerous area).

In third-party cases, examiners often signal foreseeability with facts like:

• “Several previous assaults had occurred in the parking lot.”
• “The landlord had received multiple written complaints about the broken lock.”
• “The therapist’s patient explicitly threatened to kill an identified person.”

Duty to Warn or Protect: The Tarasoff-Type Scenario

In some cases, the duty to control includes a duty to warn or protect potential victims. The classic example is the mental health professional whose patient threatens violence.

Key Term: Tarasoff Duty
The duty recognized in some jurisdictions requiring mental health professionals to use reasonable care to warn or protect identifiable potential victims when a patient makes a credible threat of serious harm.

The typical elements in exam fact patterns:

• A therapist or psychiatrist–patient relationship
• A credible threat of serious physical harm
• An identifiable intended victim (or narrow class of victims)
• Ability to take reasonable steps (warn, notify authorities, seek involuntary commitment, or otherwise reduce the risk)

Jurisdictions vary:

• Some recognize a duty to warn the potential victim or law enforcement.
• Others frame it as a broader duty to protect, which could include hospitalization, notifying police, or taking other reasonable steps.
• Some jurisdictions do not recognize such a duty at all, emphasizing confidentiality.

On the MBE:

• The question will usually specify whether the jurisdiction recognizes a Tarasoff-type duty.
• If it does, analyze whether the professional’s response was reasonable in light of the seriousness and specificity of the threat.
• If the threat was vague (“someday I will hurt someone”), duty is less likely; if it was specific (“I will kill my roommate tomorrow”), duty is much more likely.

Remember that this duty arises from the therapist–patient relationship with the wrongdoer, not from any pre-existing relationship with the victim.

Statutory Duties and Public Policy

Sometimes, statutes impose specific duties to control or report the conduct of others. Breach of such a statutory duty may result in negligence liability, often via negligence per se (statutory violation used as the standard of care).

Common examples:

• Mandatory reporting statutes:

  • Certain professionals (teachers, doctors, social workers) must report suspected child abuse or elder abuse.
  • Failure to report can support liability if:
    • The statute was designed to protect the class of persons injured (e.g., children), and
    • The harm is of the type the statute aims to prevent (continued abuse).
  • Some jurisdictions treat these statutes as creating professional discipline or criminal penalties rather than civil liability; on the MBE, the fact pattern usually signals that civil liability is possible.

• Dram shop acts:

  • Many states impose liability on bars, restaurants, and sometimes social hosts for serving alcohol to:
    • Visibly intoxicated persons, or
    • Minors, who then injure third parties while drunk (e.g., in car accidents).

Key Term: Dram Shop Act
A statute imposing liability on commercial alcohol vendors (and sometimes social hosts) for serving alcohol to certain persons, such as minors or visibly intoxicated patrons, who then harm third parties.

In dram shop problems:

• Identify a statutory duty running from the vendor to members of the public.
• Ask whether the vendor breached that duty by overserving a protected category of drinker.
• Confirm that the plaintiff is within the protected class (usually members of the public injured by the intoxicated person, not the intoxicated adult drinker themselves).

Statutes can transform what would otherwise be a no-duty situation into one where a duty to control or protect exists. On the exam, a dram shop statute or mandatory-reporting rule is a bright-line source of duty—do not ignore it.

Voluntary Undertakings and Negligent Entrustment

Even without a preexisting special relationship or statute, a defendant can create a duty by voluntarily choosing to take on responsibility.

Key Term: Negligent Entrustment
The tort of supplying a dangerous instrumentality (such as a car or firearm) to a person whom the defendant knows or should know is likely to use it in a manner involving unreasonable risk of harm to others.

Two recurring patterns:

• Voluntary undertaking to protect:

  • A business hires security guards, offers escort services to customers, or undertakes to supervise children.
  • Once it undertakes to act, it must use reasonable care in doing so.
  • Liability may arise where:
    • The defendant’s negligent performance increases the risk of harm, or
    • Others reasonably rely on the undertaking and do not take other protective measures.
  • Example: A store offers to escort customers to their cars in a dangerous area, then stops doing so without notice. A customer who relies on the program and is attacked may argue that the store undertook a duty and performed it negligently.

• Entrusting dangerous items to risky third parties:

  • Lending a car to an unlicensed, inexperienced, or intoxicated driver.
  • Giving a gun to someone known to be unstable or to have made threats.
  • Providing explosives, drugs, or other inherently dangerous items to a person known to misuse them.

In these cases, the duty arises from the defendant’s own conduct in creating or enhancing the risk that the third party will harm others. This is sometimes analyzed under “negligent entrustment” or “negligent supervision,” but it serves the same function: creating a duty where none previously existed.

These doctrines stand alongside, not in place of, special relationships. They are another route to creating an affirmative duty where the general rule would otherwise be no duty.

Comparing Duty to Control, Vicarious Liability, and Direct Negligence

It is easy to confuse several doctrines on the MBE:

Key Term: Vicarious Liability
Liability imposed on one person for the torts of another based solely on the relationship between them (e.g., employer–employee), even when the first person was not personally at fault.

• Duty to control / protect (direct negligence):

  • Defendant is personally negligent in failing to supervise, warn, or control a third party.
  • Example: Employer keeps a known violent employee in a security role and fails to supervise him.

• Vicarious liability:

  • Defendant is liable for the third party’s tort because of the relationship (e.g., respondeat superior), even if the defendant acted reasonably.
  • Example: Taxi company is liable for its driver’s negligent collision while on duty, even though it properly trained and supervised him.

• Negligent hiring, supervision, or entrustment:

  • Defendant is directly negligent in selecting, supervising, or entrusting a third party or dangerous instrumentality.
  • Example: Parent entrusts a gun to a child known to have threatened classmates.

On exam questions:

• If the plaintiff sues the employer because the employee was negligent, think vicarious liability.
• If the plaintiff sues the employer because it hired or supervised a dangerous employee, think negligent hiring/supervision (a duty to control).
• If the plaintiff sues a parent for giving a car to a reckless teen, think negligent entrustment (a duty to control).
• Both theories can be present in the same case, and the employer/parent can be liable on both.

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 / custodian–child). The harm was foreseeable given the employee’s known history, and the center had a duty to take reasonable steps (such as supervision, reassignment, or termination) to prevent it. The center’s failure to act on information about the employee’s aggression supports a claim for negligent supervision and possibly negligent hiring/retention.

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 Tarasoff-type duty to warn or protect third parties in such situations, the psychiatrist may be liable if:

• The threat was specific and credible,
• The victim was identifiable, and
• The psychiatrist failed to take reasonable steps (such as warning the victim or law enforcement, or seeking hospitalization). If the exam question tells you the jurisdiction does not recognize a Tarasoff duty, then the default is no duty to the third party, and no liability.

Worked Example 1.3

A landlord is aware that the front door to an apartment building’s lobby no longer locks properly and that several assaults have occurred in the neighborhood. The landlord does not repair the lock. A stranger enters through the unlocked door and attacks a tenant in the hallway. Is the landlord liable?

Answer:
Likely yes. Many jurisdictions recognize a landlord–tenant special relationship imposing a duty to take reasonable security measures in common areas. Given the defective lock and prior crime in the area, an assault in the hallway was foreseeable. The landlord’s failure to repair the lock may be a breach of that duty to protect tenants from third-party criminal acts.

Worked Example 1.4

A parent knows that her 15-year-old son has previously vandalized neighbors’ property and has recently bragged about “getting even” with a particular neighbor. The parent gives the son spray paint and leaves him unsupervised. The son vandalizes the neighbor’s car that night. The neighbor sues the parent. Result?

Answer:
The parent is likely liable. The parent–child relationship, combined with knowledge of the son’s past vandalism and current threats, created a duty to exercise reasonable control and to avoid supplying means to carry out the harm. Providing spray paint and failing to supervise in these circumstances is likely a breach of that duty. This is a classic negligent entrustment/negligent supervision fact pattern.

Worked Example 1.5

A bar serves alcohol to a visibly intoxicated patron who then drives and injures a pedestrian. The jurisdiction has a dram shop act making vendors liable to third persons injured as a result of serving visibly intoxicated patrons. The pedestrian sues the bar. Is the bar liable?

Answer:
Yes. The dram shop statute creates a specific duty running from the bar to members of the public like the pedestrian. Serving a visibly intoxicated patron who then drives and injures a third party is exactly the type of harm the statute aims to prevent. The bar’s violation of the statute can be treated as negligence per se.

Worked Example 1.6

A city police department receives several reports that a particular ex-boyfriend has threatened to kill his former partner. Officers take no action. Weeks later, the ex-boyfriend attacks the former partner in her apartment. She sues the city for failing to protect her. Result?

Answer:
Probably no liability, absent a special relationship or undertaking. Under the “public duty” principle, police owe duties to the public at large, not to individual citizens, unless:

• The police created the danger,
• The individual was in custody or otherwise in a special relationship with the police, or
• The police gave specific assurances and the victim reasonably relied on them.
  Mere failure to arrest or protect, without more, usually does not create tort liability on the MBE.

Worked Example 1.7

A supermarket in a high-crime area has experienced several robberies in its parking lot after dark. The store previously hired security guards to escort customers to their cars, but it quietly discontinues the program to save money without warning customers. A customer who assumes the escort service still exists is attacked while walking alone to her car at night. Is the store liable?

Answer:
Likely yes. The store–customer relationship creates a duty to take reasonable steps to protect invitees from foreseeable criminal acts. The prior robberies make the risk foreseeable. In addition, by voluntarily undertaking to provide escorts, then dropping the service without warning, the store may have increased the risk or induced reliance, creating a duty under voluntary-undertaking principles. A jury could find that discontinuing the program without notice was unreasonable.

Worked Example 1.8

A car owner knows that his friend has multiple convictions for drunk driving but loans the friend his car “just for a short trip to the bar.” The friend drives drunk and injures a pedestrian. The pedestrian sues the owner. Is the owner liable?

Answer:
Very likely yes. This is a classic negligent entrustment scenario. The owner supplied a dangerous instrumentality (the car) to a person he knew was likely to drive drunk, creating an unreasonable risk to others on the road. The owner’s liability is independent of any vicarious liability; he is directly negligent in entrusting the car to an obviously unsafe driver.

Exam Warning

On the MBE, do not assume that foreseeability alone creates a duty to control third parties. Look for:

• A special relationship (with victim or wrongdoer)
• A voluntary undertaking (security, supervision, rescue)
• A statute or public policy–based duty (dram shop, mandatory reporting)

Only after finding one of these should you conclude that a duty to control or protect exists.

Also be careful to distinguish:

• No duty cases (general rule applies) from
• Duty but no breach cases (relationship exists, but defendant’s precautions were reasonable given the risk).

Common traps include:

• Suing police or social services for failure to protect without a special relationship or specific undertaking.
• Treating employers as strictly liable for all off-duty conduct of employees (outside scope, no special knowledge, no duty to control).
• Imposing liability on landlords or businesses when there is no evidence of prior similar incidents or other foreseeability signals.

Revision Tip

When analyzing MBE questions, always ask, in order:

• Is there a special relationship (with either the third party or the victim)?
• Has the defendant undertaken to protect or supervise?
• Is there a statute creating a duty?
• Was the harm to this plaintiff reasonably foreseeable?

Only if you can answer “yes” to at least one of the first three should you move on to breach, causation, and damages. If you cannot, the best answer will usually say that the defendant owed no duty to control the third party.

Key Point Checklist

This article has covered the following key knowledge points:

• The general rule is that there is no duty to control the conduct of third parties or to protect others from their acts.
• A duty may arise where a special relationship exists between the defendant and the wrongdoer (e.g., parent–child, employer–employee, custodian–ward).
• A duty may also arise where a special relationship exists between the defendant and the victim (e.g., common carrier–passenger, innkeeper–guest, business–invitee, landlord–tenant, school–student).
• Foreseeability limits both the existence and scope of any duty to control or protect; prior similar incidents and known propensities are key facts.
• Certain professionals (notably mental health providers) may have a Tarasoff-type duty to warn or protect identifiable victims from dangerous patients in some jurisdictions.
• Statutes and public policy (such as dram shop acts and mandatory reporting laws) can create duties that otherwise would not exist, often supporting negligence per se.
• Voluntary undertakings and negligent entrustment can create duties to control or protect even without a preexisting relationship.
• Duties to control/protect are distinct from vicarious liability, but in employer contexts they often appear together; the employer may be both directly and vicariously liable.
• Government actors (police, social workers) generally owe duties to the public at large, not to specific individuals, unless a special relationship or undertaking is shown.
• On the MBE, always locate a relationship, undertaking, or statute before finding a duty to control third-party conduct, and beware of answer choices relying on foreseeability alone.

Key Terms and Concepts

• Duty to Control Third Parties
• Special Relationship
• Foreseeability
• Public Policy Exception
• Affirmative Duty to Act
• Duty to Protect
• Negligent Hiring or Supervision
• Negligent Entrustment
• Dram Shop Act
• Tarasoff Duty
• Vicarious Liability