Duty I: Action vs. Inaction; Malfeasance vs. Nonfeasance

Ogden Nash wrote a poem called "Kind of an Ode to Duty," that might inspire you: O Duty, Why hast thou not the visage of a sweetie or a cutie? Why glitter thy spectacles so ominously? Why art thou clad so abominously? Why art thou so different from Venus And why do thou and I have so few interests mutually in common between us? . . . . Why is it thy unfortunate wont To try to attract people by calling on them either to leave undone the deeds they like, or to do the deeds they don’t? . . . . Thou so ubiquitous, And I so iniquitous. . . . As you'll see over the course of the quarter, courts, scholars, practitioners, and students traditionally break negligence cases down into four elements: duty, breach, causation, and damages. "Duty" is the obligation to behave, or refrain from behaving, in a particular way. There's a default duty standard: the "ordinary duty of reasonable care," is how the Restatement characterizes it. As people (including artificial "people" like corporations and governments) go about their daily activities, they must act reasonably "under all the circumstances." The four elements of duty, breach, causation, and damages are not hermetically sealed off from one another: sometimes, the same idea can be expressed under more than one of these elemental headings. For example, in the famous _Palsgraf v. Long Island Railroad Co. _ case, which we will read later in the quarter, the New York Court of Appeals held that the railroad would not have to compensate Mrs. Palsgraf for the following chain of events: Two of the railroad's guards pushed and pulled an unknown-to-history passenger onto a moving train. It wasn't clear whether this help was itself the right thing to do. In any case, the passenger dropped the package he was carrying which (this is the sort of thing that happens in torts cases) happened to contain fireworks. These exploded, causing a shock wave along the platform which caused a set of freight scales to drop on Mrs. P. One might explain the court's decision not to hold the railroad responsible by saying that the railroad should not be liable because it was unforeseeable that what its employees did would result in the kind of injury Mrs. P. suffered; that explanation focuses on whether the railroad's acts were the _proximate cause_ (which is to "proximate" and "cause" sort of what the Holy Roman Empire was to holy, Roman, and empire) of Mrs. P's injuries. The Restatement (Third) uses the phrase "scope of responsibility" to explain this concept. Or one might say that the railroad breached no duty to Mrs. P. because, as to her, its employees did nothing unreasonable.