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XI. Duty to Control Others

At common law a person does not generally have an affirmative duty to control the conduct of another. An exception to this rule exists when a special relationship between parties is sufficient to establish a duty of care. Such a duty can be symmetrical (as between spouses) or asymmetrical (adult-minor, doctor-patient). The nature of the relationship determines the nature of the duty owed.

This otherwise-abstruse category comes about in part because the attribution of fault — and corresponding financial liability for harm — need not be singular. A mugger may be the most direct wrongdoer in a mugging. But someone aware of the mugger’s plans, or negligently helping to facilitate them, including by having premises all too easy to break into, might be an important additional defendant — possibly with deeper pockets than the direct wrongdoer. The same can go when all the behavior in question is negligent, as with the commercial or even social serving of alcoholic beverages to someone who then drives while intoxicated and hurts themselves or others. Each of these kinds of fact patterns — surprisingly common — asks the legal system to establish some baseline boundaries around liability, before jumping into a case-by-case analysis of who behaved unreasonably in the run-up to an injury.