X. Duty: Introduction; Action vs. Inaction

We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”

Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it.

Certain types of negligently-inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Further, cases in which harm is mediated through another person are also sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. whether a bartender should face liability for serving drinks to someone who ends up causing a car accident. These are found in the “duty” section when the identities or configuration of the parties lends itself to a policy judgment about the merits of weighing reasonableness at all.

We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-still-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in reality TV while pleas for help and assistance coalesce right next to you.