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University of Denver School of Law
Russell, Thomas D.

Fall 2014
Duty Definition: legal obligation by a defendant to a plaintiff
Heaven v. Pender: anyone engaged in an activity that potentially places others at risk of harm presumptively has a duty to use reasonable care to minimize the risk. 
Rule: When active, be reasonable
·         not a requirement to eliminate all risk, just be reasonable
The Third Restatement DUTY RULE: An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm
Judge balances Factors:
·         The foreseeability of the harm to the plaintiff
·         The degree of certainty that the plaintiff suffered injury
·         The closeness of the connection between the defendant’s conduct and the injury suffered
·         The moral blame attached to the defendant’s conduct
·         The policy of preventing future harm
·         The burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach
·         The availability, cost and prevalence of insurance for the risk involved
Scope of duty is limited to a foreseeable plaintiff – Palsgraf v Long Island RR.
·         Even if the defendant breaches the standard of conduct and causes injury to a plaintiff, no liability will be found if plaintiff falls outside of “zone of foreseeability”
·         To establish a duty, plaintiff must show defendant’s negligence created foreseeable risks of harm to persons in her position. 
·         Palsgraf v Long Island R.R.
o   Helen Palsgraf standing on defendant’s railroad platform waiting for a train when she was injured by an explosion that caused a scale to fall on her.
o   Court found no legal duty was owed by the defendant – defendant’s conduct not wrong in relationship to the plaintiff
o   Because Palsgraf was not a foreseeable victim, she was outside of “zone of risk” and therefore no duty was owed
Nonfeasance: No action
·         When a person does not create the risk that ultimately injured the plaintiff
·         Still liable if you fall into these categories:
o   Special Relationship
o   Undertaking to Act
o   Defendant who caused the plaintiff to rely on a gratuitous promise
EXAM: Find a way to move to misfeasance, where it is more clear to create a duty and therefore collect damages
·         Ways to move to misfeasance: created the danger, contractual, rescue, special relationship
·         Actor typically liable for affirmative acts that create an unreasonable risk of harm, but not for failure to act.
Misfeasance: Affirmative acts of misconduct
·         Doing something a reasonable person would not do
·         Failing to do something that a reasonable person would do while engage in an activity (risk creating omission)
·         Duty To Rescue
o   Rule: a person does not have a duty to aid another
§  Courts consistently refuse to require a stranger to render assistance, even where a person could have rendered aid with little risk/effort
o   Exceptions:
§  Creating the Peril: when the need for rescue arises because of the defendant’s

relies on that protection
§  Examples: innkeeper/guest, jailor/prisoner, parent/child, school/student, hospital/patient, common carrier/passenger, employee/employer
o   Landlord Duty to Protect
o   Business Duty to Protect: Business/patron relationship alone does not establish a duty to protect.  Courts typically require a high degree of foreseeability to establish duty
§  Usually requires the plaintiff to show evidence of “prior, similar incidents”
o   Police Duty to Protect and the Public Duty Doctrine
§  Public Duty Doctrine: a government actor performing improperly is not usually liable to individuals harmed by misperformance, because any duty owed is limited to the public at large rather than to any specific individual
ú  Some jurisdictions do not permit an individual harmed by fire department’s unreasonable failure to respond to recover
§  Police Duty: Typically not liable for failing to protect individual citizens
ú  Most courts limit duty to situations where police undertook to act, created reliance of the plaintiff or increased the risk of harm to the plaintiff.
ú  Riss v City of New York: no duty owed to plaintiff who told police of her boyfriend’s threats of physical harm, they did not come to her aid, and then she was physically harmed.