When does one owe a duty to another person.

Restatement of Torts §§ 37-44

One may have a moral duty (you should save this child) to do something but not a legal duty (you don’t have to save the child). Why? It is not in our culture to compel someone to act. We emphasize autonomy, separateness, and liberty over community values.

See this little snippet from Criminal Law about actus reus.

  • Omissions are more ambiguous than acts.
  • Draw a line: When is a moral obligation strong enough?
  • Practical reasons: sometimes forcing people to help can make things worse.
  • Freedom: Criminal law should prohibit people, not compel or require people to act.

When is there a duty to act?

Instead, we can recognize rare situations where there is something different so we hold a party liable for failure to act. What are these situations?

  • § 38. A statute imposes a duty on a party. An example is a statute that requires a person to report child abuse. There is no common law duty, but the statute causes the court to consider the facts.
  • § 39. Actor’s prior non-tortious conduct created a risk of harm and failed to minimize the harm. Think about hitting a deer, the person needs to either call for help or get the deer off the road.
  • § 40. A person who has a special relationship with another has a duty to that person within the scope of that relationship.
    • A common carrier with passengers (bus driver has a duty of care to passengers)
    • An innkeeper with its guests
    • A business that holds the business open to the public. See L.S. Ayres & Co. v. Hicks below.
    • Employers to employees
    • School to students. Except see Commonwealth v. Peterson and Hegel v. Langsam below.
    • Landlord to tenants
    • A custodian with those in custody. i.e. the state takes custody of children
  • § 41. An actor who has a special relationship with another owes a duty to third parties regarding risks to third parties that arise from the relationship.
    • Parent with dependent children
    • Custodian with those in custody
    • Employer with employees
    • A mental health provider.
  • § 42 Undertaking a duty to act. These are voluntary actions that increases the risk of harm to the person needing help or the person relies on the actor’s help from their actions.

Commonwealth v. Peterson

749 S.E.2d 307 (Va. 2013).

Estate of Peterson is the plaintiff against Virginia Tech (state school). Plaintiffs won and the defendant’s appealed.


Whether the school had a duty to warn students of a potential danger?


There is no duty to warn of third party criminal acts unless the foreseeable harm is known or reasonably foreseen or there is the imminent probability of harm.


The exception was not met, no duty, reversed.


Shots were heard in a dormitory on campus. Police officers responded to the situation and determined that the cause of the shooting was domestic. They notified the school officials and questioned the boyfriend. The school officials sent out an email notifying the school that there was an active shooter. A few minutes later, more shots were heard from another dormitory, leaving another two victims. The estates of these last two victims bring suit. It was later discovered that the original shooting was not domestic and that the two shootings were tied together.


The school did not have a special duty to warn because criminal actions are often seen as unforeseeable. The circumstances here are not extraordinary enough to overcome that foreseeability. The school believed that the shooter had fled the area and did not pose a danger to others. Additionally, because the police believed that the shooting was domestic related, there was no reason to assume that there would be other targets.

Therefore, the shooting was not foreseeable enough to add a duty to warn from the school.


Likewise, a school has no duty to regulate the private lives, supervise, or control the coming and goings of their students. Especially when the schools function is to provide learning. See Hegel v. Langsam, 273 N.E.2d 351 (Court of Common Pleas of Ohio 19971).

Additional Notes

Schools may have a special duty to the students, especially if the school undertakes the duty (i.e. school policy says that we will do this about these risks).

L.S. Ayres & Co. v. Hicks

40 N.E.2d 334 (Ind. 1942).

Hicks is the plaintiff. They won, defendants asked for a new trial, denied, and they appealed.


Do the defendants have a duty to prevent aggravating injuries to the plaintiff?


There may be actionable negligence if the injury was aggravated through the lack of due care. However, they cannot be liable for the injury that started if they were not negligent in the first place.


Does have a duty to prevent aggravating the injury, but only that. Remanded for a new trial.


Plaintiff is a child who got his fingers stuck in an escalator. Sued the defendant for not shutting down the escalator sooner which aggravated the injury.


Often, there is no duty to care for a third party who is passing by. However, when the injured party is an invitee to the location and suffered an injury (despite the lack of negligence of the inviter), then the inviter has the duty to prevent any further injury. Any negligence thus resulting in the aggravation of the injury can hold the defendant liable.


No duty to care until you take on responsibility to care.

J.S. and M.S. v. R.T.H.

714 A.2d 924 (N.J. 1998).

R.T.H. is the defendant. Won in trial court, lost in appellate court.


Does the wife have a duty to warn the children of the potential risks of her husband?


Foreseeability is the most important factor to determine a duty. Next, we consider the public policy considerations to see if we should hold her liable.


“When a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm.”

A breach can be considered the proximate cause for the injury. Affirmed.


Plaintiffs are two minor girls who went to the defendant’s home to ride and care horses. Husband defendant sexually abused the children. The plaintiffs sued all parties including the wife claiming that she had a duty to protect the children.


It is foreseeable that a wife would recognize that her husband posed a potential risk to the children. There are several risks they are trying to prevent, one of which is such abuse. Therefore, because of her relationship with her spouse, she also had a duty of care to those who her spouse may harm. Violation of such would be a breach if the foreseeable risk materialized.

A big reason for this result is because of legislation that holds people accountable for such actions. Thus, as a matter of public policy, it makes sense to hold the wife liable as well as the husband.


Foreseeability is how to determine a duty of care which is then influenced by public policy.

Additional Notes

We are asking if the wife had a duty to prevent this abuse in some way. How do we determine a duty? Courts consider

  1. Foreseeability of the harm
  2. Opportunity to prevent the harm
  3. Comparative interests between the parties and public policy
  4. And societal interest in proposed solutions.

Here, the wife had admitted that she knew of the potential (he had a past history). Second, evidence suggests that she had an opportunity to prevent the harm. Because preventing the harm of child sexual abuse outweighs the risk to the sanctity of marriage.

Also, there was a statute that helped the court determine that there should be a common law duty.

So, how can she live up to the duty? This is a jury question to determine if any of the following is sufficient.

  • Confront him about his actions
  • Insist that the girls cannot come over
  • Tell the parents of the girls about the risk
  • Report him to officials

Tarasoff v. Regents of University of California

551 P.2d 334 (Cal. 1976).


Does a psychiatrist have a duty to warn the potential victims of the patient’s potential danger?


No duty to warn unless there is a special relationship. A special relationship between a psychiatrist and a patient could also mean that the psychiatrist has a duty to others who have a relationship with the patient.


This is a special relationship, does have a duty to warn.


Patient of a psychiatrist expressed a desire to kill someone. The psychiatrist and others recommended that the patient remain hospitalized. He was released anyways and killed the person who he said that he would kill.

Family of the victim sued the psychiatrists for wrongful death of their daughter. Argued that the psychiatrist should have warned the parents of the potential violence.


Usually, there is no duty to warn. However, the courts here say that there is a special relationship between the patient and the psychiatrist which can hold the psychiatrist liable to third-parties related to patient information.

The court recognizes that there are policy considerations why they shouldn’t hold psychiatrists liable (patient confidentiality), but ultimately determine that the risks to others if there was a lack of duty far outweighs those disadvantages.


Those who have a special relationship with another may be liable to third-parties as an outcome of that relationship.

Additional Notes

There was no special relationship between the doctors and the victim. However, there was a special relationship between the doctors and the patient.

Particularized foreseeability – foreseeable that a particular/specific victim is targeted.

Should there be a duty on the doctors to warn third-parties of a potential threat?

Doctors arguments:

  • Breach of patient confidentiality would break the trust that the patient would have with the doctor. Maintaining that trust is much more important than breaking it.
  • There were a couple of months between the patient release and the action of killing the victim. The passage of time could break the proximate cause chain.
  • Providing way too many unnecessary warnings.

However, the court determined that the doctor has a duty to warn the third person due to the special relationship they have with the patient.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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