The Duty Problem
Author | John Fabian Witt |
Pages | 388-500 |
CHAPTER 8. THE DUTY PROBLEM
We have now walked through the basic steps of the tort cause of action in most
unintentional torts case. It turns out, however, that there is still one more hurdle for the
enterprising plaintiff’s lawyer and her client. For even when a defendant has acted
negligently, and even when that negligent action was a necessary antecedent and a legal
cause of the plaintiff’s injury, and even when the plaintiff has not acted negligently or
assumed the risk herself, sometimes she still cannot recover. The principal reason for this
doctrinally is the doctrine of duty. For in tort, the obligation of reasonable care is not a
general duty owed to all the world. It is a domain-specific duty, owed to many third
parties under many circumstances, to be sure, but not to all people at all times.
The question of whether legal duty is properly an independent component of the
inquiry in a torts case has been hotly contested for nearly a century now. Critics argue
that to conclude that there was or was not a legal duty in a particular case is inevitably
question begging and circular. Critics point out further that the kinds of factors that
courts consider in determining whether a legal duty exists are precisely the kinds of
factors the judge and jury are to consider at other stages of the inquiry. Defenders, by
contrast, argue that the duty stage of the analysis is critical for understanding the
relational character of tort law’s corrective justice project.
One thing that the defenders’ argument has going for it is that historically, there
have been an extraordinary array of areas in our social life to which the common law of
torts attaches a special limited tort duty of care -- or simply no duty of care at all. Having
built up the negligence action in the past five chapters, the common law (at least in its
traditional structure) sometimes seemed to dismantle the negligence action in virtually
every significant domain of social life
In this chapter, we run through the principal social situations in which the law of
torts recognizes no duty of reasonable care. Areas of limited or no duty abound.
Historically, they have virtually covered the field of tort law, so much so (as the torts
scholar Robert Rabin has observed) that the negligence cause of action barely existed
until the middle of the nineteenth century. See Robert L. Rabin, The Historical
Development of the Fault Principle: A Reinterpretation, 15 GA. L. REV. 925 (1981).
The second half of the twentieth century witnessed the gradual erosion of these
domains of limited or no duty of care and the concomitant expansion of the negligence
action. The first example of a limited duty rule we take up below, however, is the classic
rule holding that there is generally no duty to rescue. This rule is still running strong
today. The nonexistence of such a duty to rescue, many say, is a powerful piece of
evidence for the centrality of duty in our basic ideas about tort law.
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A. Is There a Duty to Rescue?
It is well settled – and yet enduringly controversial – that the common law of torts
imposes no general duty to rescue. The person who encounters an unconscious stranger
face down in a puddle on the sidewalk has no tort duty to turn the stranger’s head, even if
the person knows the stranger to be in imminent danger of death by drowning, and even
if the person knows that the costs to herself of rescuing the stranger would be de minimis.
Why should tort law adopt such a morally startling proposition? We have no
doubt that the person who declines to assist in such a situation has behaved in a shocking
and morally deplorable fashion. But despite the moral obligation to assist in such a case,
the law declines to attach a legal obligation.
1. Cases
Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976)
Levin, J.
On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot
to return an automobile which Siegrist had borrowed from a friend who worked there.
While waiting for the friend to finish work, Siegrist and Farwell consumed some beer.
Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage
them in conversation; they left Farwell’s car and followed the girls to a drive-in
restaurant down the street.
The girls complained to their friends in the restaurant that they were being followed.
Six boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but
Farwell was severely beaten. Siegrist found Farwell underneath his automobile in the lot.
Ice was applied to Farwell’s head. Siegrist then drove Farwell around for approximately
two hours, stopping at a number of drive-in restaurants. Farwell went to sleep in the back
seat of his car. Around midnight Siegrist drove the car to the home of Farwell’s
grandparents, parked it in the driveway, unsuccessfully attempted to rouse Farwell, and
left. Farwell’s grandparents discovered him in the car the next morning and took him to
the hospital. He died three days later of an epidural hematoma.
At trial, plaintiff [the father of the decedent] contended that had Siegrist taken
Farwell to the hospital, or had he notified someone of Farwell’s condition and
whereabouts, Farwell would not have died. A neurosurgeon testified that if a person in
Farwell’s condition is taken to a doctor before, or within half an hour after, consciousness
is lost, there is an 85 to 88 per cent chance of survival. Plaintiff testified that Siegrist told
him that he knew Farwell was badly injured and that he should have done something.
8. Duty Problem
390
The jury returned a verdict for plaintiff and awarded $ 15,000 in damages. The Court
of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for
Farwell and that he neither knew nor should have known of the need for medical
treatment.
II
. . . . “A duty, in negligence cases, may be defined as an obligation, to which the law
will give recognition and effect, to conform to a particular standard of conduct toward
another.” Prosser, Torts (4th ed), § 53, p 324. . . .
Without regard to whether there is a general duty to aid a person in distress, there
is a clearly recognized legal duty of every person to avoid any affirmative acts which
may make a situation worse. ”[I]f the defendant does attempt to aid him, and takes charge
and control of the situation, he is regarded as entering voluntarily into a relation which is
attended with responsibility. * * * Such a defendant will then be liable for a failure to use
reasonable care for the protection of the plaintiff’s interests.” Prosser, supra, § 56, pp
343-344. “Where performance clearly has been begun, there is no doubt that there is a
duty of care.” Id. [at] 346.
In a case such as the one at bar, the jury must determine, after considering all the
evidence, whether the defendant attempted to aid the victim. If he did, a duty arose which
required defendant to act as a reasonable person.
. . . .
There was ample evidence to show that Siegrist breached a legal duty owed
Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to relieve
Farwell’s pain by applying an ice pack to his head. While Farwell and Siegrist were
riding around, Farwell crawled into the back seat and laid down. The testimony showed
that Siegrist attempted to rouse Farwell after driving him home but was unable to do so.
In addition, Farwell’s father testified to admissions made to him by Siegrist: . . . .
“He said, ’Ricky was hurt bad, I was scared.’ I said, ’Why didn’t you tell somebody, tell
his grandparents?’ He said, ’I know I should have, I don’t know.’” . . .
III
Siegrist contends that he is not liable for failure to obtain medical assistance for
Farwell because he had no duty to do so.
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