Section 1.11 Summary

• Library: Tort Law 2016

A. (§1.11) Summary

As noted in §1.1 above, a condition precedent to an action in tort is the existence of a recognized legal relationship between the claimant and the defendant sufficient to impose a duty to prevent foreseeable injury. The mere fact that an entity or person may arguably foresee the potential for injury to another is not, in and of itself, sufficient to impose a legal duty to prevent the injury in question. There must exist a relationship between the claimant and the defendant such that a legal duty arises to take reasonable precautions to prevent injury. Blum v. Airport Terminal Servs., Inc., 762 S.W.2d 67, 72 (Mo. App. E.D. 1988) (the mere fact that the corporation knew of programs to prevent the misfueling of a plane did not impose on it a duty to customers of its subsidiary to ensure that the subsidiary implemented such programs, in the absence of evidence establishing dominion and control of subsidiary operations).

The question of the existence of a duty is rarely an issue when dealing with intentional torts. By definition, the defendant has affirmatively done something that has resulted in damage to the claimant, and the efforts of the parties are generally directed toward the issues of breach of duty and damages. This is not the case in the law of negligence. Unlike claims of intentional tort, claims of negligence may be premised on the defendant’s failure to do something or the defendant’s negligent performance of some act. Thus, the authors of...