Negligence - The duty question

Learning Outcomes

After reading this article, you will be able to identify when a duty of care arises in negligence, explain the foreseeability and "zone of danger" concepts, distinguish between general and special duties, and apply these principles to MBE-style questions. You will also recognize common pitfalls and understand how to analyze who is owed a duty in various factual scenarios.

MBE Syllabus

For the MBE, you are required to understand the principles governing the existence and scope of the duty of care in negligence. This includes:

  • Recognizing when a duty of care arises in negligence actions.
  • Applying the foreseeability and "zone of danger" tests to determine to whom a duty is owed.
  • Distinguishing between general duties and special duty situations (e.g., rescuers, affirmative duties, landowner duties).
  • Identifying the effect of statutory duties and the impact of public policy on duty questions.
  • Analyzing scenarios involving unforeseeable plaintiffs and the limits of liability.

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 a negligence action, to whom does a defendant owe a duty of care?
    1. Only to plaintiffs with whom the defendant has a contract
    2. Only to plaintiffs who suffer physical harm
    3. To all foreseeable plaintiffs within the zone of danger
    4. To anyone who suffers harm, foreseeable or not
  2. Which of the following best describes the "zone of danger" rule?
    1. Duty is owed to all persons in the world
    2. Duty is owed only to those at risk of direct physical impact
    3. Duty is owed to those foreseeably endangered by the defendant's conduct
    4. Duty is owed only to rescuers
  3. Which of the following is generally NOT a recognized special duty situation?
    1. Common carrier to passenger
    2. Landowner to undiscovered trespasser
    3. Parent to child
    4. Innkeeper to guest

Introduction

Negligence requires a duty of care owed by the defendant to the plaintiff. The "duty question" asks: to whom is this duty owed, and under what circumstances does it arise? This is the first and often most critical element in any negligence analysis. The MBE frequently tests your ability to identify whether a duty exists, who is owed that duty, and how foreseeability and public policy shape the boundaries of liability.

Key Term: Duty of Care The legal obligation to conform to a standard of conduct to protect others from unreasonable risk of harm.

The General Rule: Foreseeable Plaintiffs

The default rule is that a person owes a duty of care to all persons who are foreseeably endangered by their conduct. This is often called the "zone of danger" test. If a reasonable person would have foreseen the risk of harm to the plaintiff, a duty is owed.

Key Term: Foreseeability The quality of being reasonably predictable; in negligence, it refers to whether a reasonable person would anticipate the risk of harm to the plaintiff.

The "Zone of Danger" Principle

Courts typically limit the duty of care to those within the "zone of danger"—those who are foreseeably at risk of harm from the defendant's actions. Plaintiffs outside this zone are generally considered unforeseeable and cannot recover.

Key Term: Zone of Danger The area in which a person is at risk of physical harm from the defendant's conduct and thus owed a duty of care.

Unforeseeable Plaintiffs

If a plaintiff is not foreseeable, no duty is owed. The classic case is Palsgraf v. Long Island Railroad, where the court held that the defendant owed no duty to a plaintiff who was outside the foreseeable range of harm.

Special Duty Situations

Certain relationships or circumstances create special duties, sometimes even to persons who might not otherwise be foreseeable plaintiffs. These include:

  • Common carriers to passengers
  • Innkeepers to guests
  • Landowners to certain entrants
  • Parents to children
  • Employers to employees

Key Term: Special Duty A heightened or specific obligation to act for the protection of another, arising from a particular relationship or circumstance.

Affirmative Duties to Act

Generally, there is no duty to rescue or aid others. However, exceptions arise where:

  • The defendant's conduct created the risk
  • There is a special relationship (e.g., parent-child, carrier-passenger)
  • The defendant has voluntarily undertaken to help

Statutory Duties and Public Policy

Sometimes, statutes impose duties (e.g., traffic laws). Violation of such statutes may establish duty and breach (negligence per se), but only if the statute was intended to protect the class of persons and type of harm involved.

Key Term: Negligence Per Se The doctrine that an unexcused violation of a statute designed to protect others constitutes automatic breach of duty.

Worked Example 1.1

A train operator negligently fails to secure a cargo door. A box falls and injures a bystander standing on the platform. Another person, standing far down the platform and not in the path of the box, is startled and suffers a heart attack. Who can recover?

Answer: The bystander struck by the box is within the zone of danger and is a foreseeable plaintiff, so the operator owes a duty. The person far down the platform is likely outside the zone of danger and not a foreseeable plaintiff; no duty is owed.

Worked Example 1.2

A store owner sees a customer collapse and does nothing. The customer later sues for failure to aid. Is the store owner liable?

Answer: Generally, there is no duty to rescue unless a special relationship exists. A store owner is not a common carrier or innkeeper, so absent a statute or voluntary undertaking, no duty arises.

Exam Warning

Many students mistakenly assume that duty is owed to anyone harmed. Always ask whether the plaintiff was foreseeable and within the zone of danger. On the MBE, look for facts establishing foreseeability or a special relationship.

Revision Tip

When analyzing a negligence question, always identify: (1) who is at risk from the defendant's conduct, (2) whether the plaintiff is foreseeable, and (3) whether any special duty applies.

Key Point Checklist

This article has covered the following key knowledge points:

  • Duty of care is owed to foreseeable plaintiffs within the zone of danger.
  • Foreseeability limits the scope of duty; unforeseeable plaintiffs cannot recover.
  • Special relationships (carrier-passenger, parent-child, etc.) may create special duties.
  • No general duty to rescue unless a special relationship or voluntary undertaking exists.
  • Statutory duties may establish duty and breach if the statute protects the plaintiff and type of harm.
  • Always analyze whether the plaintiff is foreseeable and whether a special duty applies.

Key Terms and Concepts

  • Duty of Care
  • Foreseeability
  • Zone of Danger
  • Special Duty
  • Negligence Per Se
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