Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
reason to recognize a duty to render assistance, but rather merely a reason to think that the
defendant may have breached such a duty when a special relationship establishing such a duty can
be said to exist for independent reasons. What is at stake in these two different approaches, as is
so often the case in the duty inquiry, is the allocation of decisionmaking authority between judge
and jury. If the existence of a duty turns on factual questions such as the defendant’s knowledge
of the risks, then the jury will have considerable influence on the duty determination. But if the
duty determination, as in Harper, is made independent of the particular facts in a particular case,
then courts will be able to make those judgments on their own. Each approach creates its own
dilemmas. The fact-intensive approach of Farwell begs the question of why the very same factors
that help decide the existence of a duty—a defendant’s knowledge of the risks, the costs of
precautions, etc.—then reappear at the breach stage of the analysis to help decide whether the
defendant breached the duty. By contrast, the Harper court approach leaves one wondering what
the relevant considerations would be for recognizing a special relationship between the parties; is
the special relationship category exhausted by the short list of historical special relations?
3. Acts and omissions. The no-duty rule posits that there is no general duty to act, merely a
duty in acting to behave reasonably in the actions one does undertake. Omissions, as opposed to
actions, do not give rise to legal responsibility.
But why are either of these cases properly characterized as cases in which the defendant
omitted to act rather than as cases in which the defendant was engaged in a course of conduct.
Why, in other words, are they treated as omission cases rather than action cases?
There is little doubt that a driver who fails, either negligently or intentionally, to apply the
brake when he sees a pedestrian cross dangerously in front of him has driven in a wrongful
manner. Of course we could characterize the driver as having omitted to act—as having omitted
to apply the brake. But we don’t. Note that one important feature of this hypothetical is that the
driver is causally connected to the risk in which the pedestrian finds himself. Yet the same is true
in both Farwell and Harper. Why don’t we see the drinking buddy as having engaged in a
negligent course of action in setting out on an adventure in the dangerous parking lots of the
American suburban wilderness? Didn’t Farwell engage in a course of conduct much like the
driver who omits to brake? Herman could be said to have engaged in a kind of negligent boating.
Professors Kenneth Abraham and Leslie Kendrick contend that “most of the so-called affirmative
duty cases actually are conventional negligence cases of a particular sort: those in which the
defendant is not exclusively responsible for creating the danger to the plaintiff.” Kenneth S.
Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, 104 IOWA L. REV. 1649
(2019).
One view is that there are no bedrock principles on which the act / omission distinction
rests, but that there are merely social conventions and intuitions about when a person can be said
to be in some way responsible for another’s loss. The difficulty, of course, is that to say this is not
very helpful, since the aim of tort law is precisely to identify who should bear a given loss,
especially in cases where the social conventions become controversial.
4. The utilitarian critique. What principle explains the rule of no duty to rescue? A century
ago, legal scholar James Barr Ames suggested that the general no-duty rule was a kind of failure
of imagination that prevented adoption of a more targeted and nuanced rule that would more
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