A. Duty and Breach of Duty

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Duty and Breach of Duty

1. Foreseeability and the Existence, Nature, and Scope of Duty

One does not always owe a duty of care to others.⁴ Thus, the first step is to determine whether a duty of some level of care is owed. Second, it is necessary to determine the nature or level of care involved—for example, is it due care (which is breached by negligence) or is it slight care (which is breached by gross negligence or recklessness)? Finally, the scope of duty must be identified in order to resolve such issues as: What factors are relevant to the exercise of care, to whom is the duty owed, and what injuries are protected by law? These duty issues are resolved by the judge rather than the jury,⁵ but there are no general tests or rules for determining how a judge will resolve them.⁶

[T]he question of whether a defendant owes a duty, the breach of which may constitute negligence, is a question of law, not of fact.

There is no formula for determining duty; a duty is not sacrosanct in itself but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection. Suffice it to say that a multiplicity of factors come into play when courts contemplate the question of duty. These factors include the policy of deterring future tortfeasors, the moral culpability of the tortfeasor and numerous other conceivable factors; duty is seen in general terms as requiring a person or corporation to conform his or its conduct to a standard which is adequate to protect others from unreasonable risk of harm.⁷

The analysis of duty has often involved a concern with "foreseeable" risks.⁸ This concern can provide a useful framework for analysis because it rests on the distinction between two types of risks. First, there are risks that may be conceivable or statistically possible—injury from a falling meteor, for example—but which are so remote or conjectural that it would be both unfair⁹ and inefficient¹⁰ to expect them to be considered.¹¹ Second, there are risks that may not be probable or likely, but are nevertheless sufficiently capable of occurring that they ought to be considered when a prudent person evaluates the need for precaution.¹² This second class of risks is said to be foreseeable.

a. The Scope of Duty—Foreseeable Risks and Foreseeable Injured Persons

Where a duty of due care exists, a person is required to consider only the foreseeable risks of his or her conduct or failure to act. If an injury is not foreseeable, he or she is not liable.¹³ Thus, for example, if a storekeeper could not reasonably be expected to be aware of the risks of his or her customers' slipping¹⁴ or of being attacked,¹⁵ he or she does not breach the duty of due care if he or she does not take steps to prevent such occurrences.¹⁶ However, it is not necessary that the details of the particular injury be foreseen; due care to prevent a particular type of injury is required so long as injury of that general kind is foreseeable.¹⁷ Foreseeability can also be important in determining the persons to whom a defendant owes a duty of due care. The defendant's duty generally extends only to foreseeable persons of the risk involved.¹⁸

Though foreseeability is an important concept, its role is limited in two important ways. First, foreseeability, by itself, does not give rise to a duty. Second, even if there is a duty of due care to prevent a risk, the plaintiff must show that the defendant breached that duty and also show that the breach proximately caused a legally protected injury. Liability based only on relationship and foreseeability of risk is an insurance type of liability, not liability based on fault.¹⁹

b. Limits on the Existence of the Duty to Protect Foreseeable Persons from Foreseeable Risks

Given the central role that foreseeability plays in defining the scope of duty, it is tempting to conclude that it could also be used to determine when a duty exists. For example, one might be tempted to say that a duty of due care always exists where a risk is foreseeable. However, such a generalization is not valid because there are numerous situations where there is either no duty of due care or only a duty of less than due care to protect foreseeable persons from foreseeable risks. Thus, courts frequently note: "Foreseeability itself does not give rise to a duty."²⁰

The following sections discuss four such situations: (1) emotional injuries; (2) economic loss; (3) foreseeable misconduct by others; and (4) "wrongful life." Other situations where duty is limited, even though a risk is foreseeable, will be discussed later in terms of affirmative acts,²¹ premises liability,²² and immunities.²³

(1) Emotional Distress

Where the plaintiff suffers emotional distress, the duty of due care may be limited and/or subject to special proof requirements for three reasons. First, because of the subjective nature of mental distress, there can be problems of proof involved in showing whether the emotional trauma exists or is as severe as claimed.²⁴ These problems are generally addressed by imposing special proof requirements for recovery;²⁵ additional limits on or requirements for liability are not usually necessary for proof problems.²⁶ Second, limits on liability are necessary because the emotional effects of an act can extend indefinitely—for example, if a person is struck and killed by an automobile, emotional harm could be suffered by the witnesses of the event, strangers who read or hear of the event, and relatives and friends of the injured person. In most cases, liability for all these effects would be disproportionate to the misconduct involved; therefore, limits are necessary.²⁷ Third, imposing a general duty to use due care to protect the emotional well-being of others, including minor or idiosyncratic mental distress, would result in a drastic change in current expectations and practices concerning which injuries are legally recognized. For example, negligent painting of an automobile might result in a color that is so ugly that the owner suffers emotional harm in the form of embarrassment as he or she drives the car through his or her neighborhood. Negligently impolite comments could also cause psychic harm. At some point, in order to avoid wasteful litigation over such relatively trivial matters as ugly colors and minor rudeness, it is necessary to impose a limit by identifying "minor" emotional harm that is not protected by law.²⁸

These three concerns must be balanced against the policies supporting liability for injury caused by negligence.²⁹ Over time, the courts have gradually given greater weight to the policies supporting liability and expanded liability for mental distress caused by negligence.³⁰ The issue, therefore, is: How does one determine the proper balance in order to identify where the limit on liability for negligent infliction of emotional distress will be?

In addressing this question, it is important to note that the three reasons for limiting liability have little, if any, role where a defendant negligently causes a physical injury and, as a result of that physical injury, the plaintiff suffers pain and other mental trauma. In such cases, there is usually no reason to worry about disproportionate liability because direct physical injury is unlikely to extend through society the way mental anguish can. In addition, the fact of the physical injury provides a basis on which to infer that the emotional distress is not falsified, not imagined, and not trivial. Consequently, the courts, viewing such emotional injury as "parasitic" on the physical harm, have traditionally granted recovery for emotional harm caused by a physical injury.³¹

In contrast, where mental trauma does not result from a physical trauma, limits are necessary. Given the variety of situations where mental distress has been caused by negligence, it is hard to state precise rules concerning these limits. Nevertheless, it is possible to identify three types of rules for liability for negligence, applicable where mental distress does not result from physical injury, that the courts have adopted in order to address the three concerns discussed above.

First, most courts grant recovery for negligent infliction of emotional harm caused by a contemporaneous awareness that serious physical injury to plaintiff could have resulted, even though it did not. For example, if a pedestrian saw a car speeding at him as he walked along the sidewalk, he can recover for negligence, even if he is not physically injured by the car, for the emotional trauma caused by the fear of the likely physical injury so long as some "impact" (however slight) occurred³² or so long as the plaintiff was in the "zone of danger" of impact.³³ As with a "direct" physical inquiry, the impact requirement and the zone of danger requirement impose a clear line that limits liability for emotional distress as it extends through society and that provides an indicator that the mental distress is both real and substantial.

Second, in order to address the problems of proof and of expectations of liability, courts often impose a requirement of proof of "physical manifestation" or "objective" symptoms of emotional distress.³⁴ In some circumstances, particularly for "direct" harms, the existence of such "physical injury" caused by the emotional distress is sufficient to support a claim.³⁵

Third, in order to avoid the problem of disproportionate liability arising in cases where mental trauma results from witnessing an injury or from responding emotionally to a physical injury to a friend or relative, the courts generally deny recovery for such "indirect" emotional trauma except in very narrowly limited situations.³⁶ In South Carolina, such indirect emotional distress is only recoverable: (1) under Kinard v. Augusta Sash and Door Co.,³⁷ which provides a limited right of "bystander recovery" for emotional distress from witnessing the death or...