When and to Whom is a Duty of Care Owed

• Author: Eric E. Johnson
• Pages: 73-136

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5. When and to Whom is a Duty

of Care Owed

“A danger foreseen is half-avoided.”

– Cheyenne Proverb

Introduction

The first element that must be established by a plaintiff in proving a

negligence case is that the defendant owed the plaintiff a duty of care.

If the defendant did not owe the plaintiff a duty of care, then even if

the defendant was careless and caused injury to the plaintiff, there

will be no recovery in negligence.

Suppose someone asks you for one of your kidneys, explaining that

otherwise they will die. In terms of negligence doctrine, you do not

owe this person a duty to hand over a kidney. And even if the person

dies as a result of not getting one of your kidneys, there is no prima

facie case against you for negligence. You can probably intuit that

there is not a good cause of action here, but it is instructive to

consider the explicit reason. Check off the elements: There is an

injury. There is causation. Those are not lacking. What is lacking is

the duty of care.

Now, suppose you are carelessly operating a rocket-powered tricycle

and, thanks to your lack of care, you careen out of control, hitting

and injuring a pedestrian who was walking on a sidewalk. You owed

the pedestrian a duty of care, and you breached that duty. And that

breach caused an injury. Thus, the pedestrian will be able to establish

a prima facie case for negligence. All the elements are in place.

In this chapter, the key question is when and to whom is a duty of

care owed. In other words: Is there a duty? The question of what is

required by a duty of care – in other words, just how careful do you

have to be – is a question for the next chapter, in which we will talk

about breach of duty.

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Whether or not there is a duty of care is generally considered a

question of law, meaning it is a matter for the judge to decide. Thus, the

doctrine of duty of care can be used to prevent a jury from hearing a

case that might otherwise result in a substantial award of damages.

The Essential Concept: Foreseeability

The essential concept in defining the duty of care in negligence is

foreseeability. A defendant is said to owe a duty of care to all

foreseeable plaintiffs for all foreseeable harm.

Case: Weirum v. RKO

In this case there is carelessness, injury, actual and proximate

causation. The only open question is whether a duty of care is owed.

Weirum v. RKO General, Inc.

Supreme Court of California

August 21, 1975

15 Cal.3d 40. RONALD A. WEIRUM et al., Plaintiffs and

Appellants, v. RKO GENERAL, INC., Defendant and

Appellant; MARSHA L. BAIME, Defendant and Respondent.

L.A. No. 30452. In Bank. Opinion by Mosk, J., expressing the

unanimous view of the court. Wright, C. J., McComb, J.,

Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.

Justice STANLEY MOSK:

A rock radio station with an extensive teenage audience

conducted a contest which rewarded the first contestant to

locate a peripatetic disc jockey. Two minors driving in separate

automobiles attempted to follow the disc jockey’s automobile to

its next stop. In the course of their pursuit, one of the minors

negligently forced a car off the highway, killing its sole occupant.

In a suit filed by the surviving wife and children of the decedent,

the jury rendered a verdict against the radio station. We now

must determine whether the station owed decedent a duty of

due care.

The facts are not disputed. Radio station KHJ is a successful

Los Angeles broadcaster with a large teenage following. At the

time of the accident, KHJ commanded a 48 percent plurality of

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the teenage audience in the Los Angeles area. In contrast, its

nearest rival during the same period was able to capture only 13

percent of the teenage listeners. In order to attract an even

larger portion of the available audience and thus increase

advertising revenue, KHJ inaugurated in July of 1970 a

promotion entitled “The Super Summer Spectacular.” The

“spectacular,” with a budget of approximately $40,000 for the

month, was specifically designed to make the radio station

“more exciting.” Among the programs included in the

“spectacular” was a contest broadcast on July 16, 1970, the date

of the accident.

On that day, Donald Steele Revert, known professionally as

“The Real Don Steele,” a KHJ disc jockey and television

personality, traveled in a conspicuous red automobile to a

number of locations in the Los Angeles metropolitan area.

Periodically, he apprised KHJ of his whereabouts and his

intended destination, and the station broadcast the information

to its listeners. The first person to physically locate Steele and

fulfill a specified condition received a cash prize. The

conditions varied from the giving of a correct response to a

question to the possession of particular items of clothing. In

addition, the winning contestant participated in a brief interview

on the air with “The Real Don Steele.” The following excerpts

from the July 16 broadcast illustrate the tenor of the contest

announcements:

9:30 and The Real Don Steele is back on his feet

again with some money and he is headed for the

Valley. Thought I would give you a warning so

that you can get your kids out of the street.

The Real Don Steele is out driving on – could

be in your neighborhood at any time and he’s

got bread to spread, so be on the lookout for

him.

The Real Don Steele is moving into Canoga

Park – so be on the lookout for him. I’ll tell you

what will happen if you get to The Real Don

Steele. He’s got twenty-five dollars to give away