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X. Duty: Introduction; Action vs. Inaction

We’ve so far looked at the cause of action for negligence from the vantage of weighing the reasonableness of a party’s behavior, and how best to delineate the standard of care. We now turn to a conceptually distinct (at least most of the time) inquiry: 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.” Often this argument, from a civil procedure perspective, is quite powerful for a defendant: it can be lodged, assessed, and found controlling to the outcome at an early stage of litigation, before extensive factual development or empanelment of a jury.

Why wouldn’t the plaintiff have a case, if the defendant can be said to have behaved unreasonably? 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, without more, have also 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 may be categorized as “duty” cases 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. 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 choose to scroll your smartphone screen while pleas for help and assistance are shouted right next to you.