Duty Of Care — Determine whether duty exists

SECTION 1

Historical Context & Motivation

The concept of duty of care stands as the foundational gatekeeping element in any negligence action. Before a court can assess whether a defendant acted unreasonably, it must first resolve a question of law: did the defendant owe any legally cognizable obligation to the plaintiff at all? The doctrine did not spring fully formed from early common law; rather, it evolved over centuries from a highly formalized system of status-based obligations into the flexible, foreseeability-driven framework that dominates modern American tort law. Understanding this evolution is essential to appreciating why courts still struggle with duty questions today and why competing analytical frameworks persist across jurisdictions.

1842

Winterbottom v. Wright

An English court held that a coach manufacturer owed no duty to an injured passenger because they lacked privity of contract. This decision entrenched the idea that duty arose only from direct contractual relationships, severely limiting tort liability.

1916

MacPherson v. Buick Motor Co.

Judge Benjamin Cardozo dismantled the privity requirement, holding that a manufacturer of a product reasonably expected to be dangerous if negligently made owes a duty to foreseeable users regardless of contractual privity.

1932

Donoghue v. Stevenson (UK)

Lord Atkin articulated the famous neighbor principle: you owe a duty of care to persons so closely and directly affected by your acts that you ought reasonably to have them in contemplation. While a UK decision, this deeply influenced American jurisprudence.

1928

Palsgraf v. Long Island Railroad Co.

Cardozo's majority opinion established that duty is owed only to foreseeable plaintiffs within the zone of danger. Andrews' famous dissent argued that duty runs to all persons injured by a negligent act, shifting foreseeability to the proximate cause analysis.

1968–Present

Rowland v. Christian & Modern Policy Analysis

The California Supreme Court collapsed traditional landowner categories and adopted a multi-factor policy-based duty analysis, which has since been adopted or adapted by many jurisdictions and endorsed by the Restatement (Third) of Torts.

This historical arc reveals a persistent tension that remains central to bar exam analysis: should duty be determined by the relationship between the parties, by the foreseeability of harm, or by broader policy considerations? Modern negligence law draws on all three approaches, and the bar exam tests your ability to navigate each framework and to identify when special rules—such as the general rule of no duty to act—override the default analysis.

SECTION 2

Core Principles & Definitions

Duty is the first element of a prima facie negligence claim and is uniquely a question of law for the judge, not the jury. Unlike breach and causation, which turn on the facts of the case, the duty inquiry asks whether the law should impose an obligation of reasonable care at all. The Restatement (Third) of Torts articulates the general duty of reasonable care as the default rule: an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. Exceptions to this default—situations in which no duty exists despite a foreseeable risk—are carved out through specific doctrines and policy considerations.

General Duty Rule

Everyone has a duty to exercise reasonable care in their affirmative conduct to avoid creating an unreasonable risk of harm to others. This is the default presumption for all misfeasance cases.

Foreseeable Plaintiff Doctrine

Under the Cardozo (majority) view from Palsgraf, a defendant owes a duty only to those plaintiffs within the foreseeable zone of danger created by the defendant's conduct.

No Duty to Act (Nonfeasance)

As a general rule, there is no affirmative duty to rescue or protect another from harm not created by the defendant. Exceptions arise from special relationships, voluntary assumption, and statutory duties.

Special Relationships

Certain relationships impose an affirmative duty to protect: innkeeper-guest, common carrier-passenger, employer-employee, school-student, landlord-tenant, and custodian-ward.

Policy-Based Limitations

Even when foreseeability is established, courts may decline to impose duty based on policy factors: administrability, moral blame, burden on the defendant, consequences of imposing liability, and community expectations.

✦ KEY TAKEAWAY

Think of duty like a security checkpoint at an airport. The checkpoint (duty analysis) determines who is even permitted into the terminal (the rest of the negligence analysis). If the court concludes that no duty exists, the case never reaches the jury—the entire negligence claim is dismissed as a matter of law, just as a traveler without a boarding pass never gets past security. The general duty rule acts as a default boarding pass for misfeasance cases, but nonfeasance cases require a 'special ticket' in the form of a special relationship or other exception.

SECTION 3

Visual Explanation — The Duty Analysis Framework

This decision tree illustrates the two-track duty analysis. The left branch (misfeasance) begins with the presumption that a general duty of reasonable care exists and then asks whether the plaintiff is foreseeable. The right branch (nonfeasance) begins with no duty as the default and requires the plaintiff to identify a recognized exception. Notice that even on the misfeasance side, policy considerations may override a finding of duty.

The diagram above captures the essential architecture of duty analysis on the bar exam. Begin every question by classifying the defendant's conduct as misfeasance (affirmative conduct creating risk) or nonfeasance (a failure to act). This initial classification determines which presumption applies—duty or no duty—and shapes every subsequent step of the analysis. For misfeasance, the critical follow-up is whether the plaintiff was a foreseeable victim of the defendant's risk-creating conduct, per the Palsgraf framework. For nonfeasance, you must affirmatively identify a recognized exception—such as a special relationship or voluntary assumption of duty—before duty attaches.

SECTION 4

How It Works — The Analytical Framework in Depth

Step 1: Misfeasance vs. Nonfeasance

The distinction between misfeasance and nonfeasance is the single most important threshold determination in duty analysis. Misfeasance occurs when the defendant's affirmative conduct creates a risk of harm—driving a car, manufacturing a product, performing surgery. In misfeasance cases, the general duty of reasonable care attaches automatically under both the Restatement (Second) and the Restatement (Third). Nonfeasance, by contrast, involves a failure to act when the defendant did not create the danger—a bystander who watches a stranger drown. The common law's deep reluctance to impose liability for nonfeasance reflects values of individual autonomy and concerns about imposing open-ended rescue obligations on all members of society.

Step 2: The Foreseeability Inquiry

Once misfeasance is established, the court examines whether the plaintiff was a foreseeable plaintiff. Under the Cardozo view from Palsgraf, which is the majority rule, duty is limited to persons within the reasonably foreseeable zone of danger. This is the view tested on the MBE. The Andrews dissent—that everyone injured by negligent conduct can sue, with foreseeability relevant only to proximate cause—represents a minority position. It is critical to understand that foreseeability in the duty context is assessed at a relatively high level of generality; the court asks whether this category of plaintiff was foreseeable, not whether the specific mechanism of injury was foreseeable.

Step 3: Exceptions Creating Affirmative Duty

When the case involves nonfeasance, the plaintiff must establish one of several recognized exceptions to the no-duty-to-act default. The most frequently tested exceptions on the bar exam include: (1) a special relationship between the defendant and the plaintiff (or between the defendant and a third party who causes harm); (2) the defendant's voluntary assumption of a duty by beginning a rescue; (3) a statutory duty (such as hit-and-run statutes); (4) the defendant's creation of the peril that placed the plaintiff in danger; and (5) the defendant's ability to control a third party who poses a risk to the plaintiff.

Step 4: Policy-Based Duty Limitations

Even when foreseeability is satisfied, a court may invoke policy considerations to limit or negate duty. The Restatement (Third) identifies several factors: (a) the nature of the defendant's activity and whether imposing liability would chill socially valuable conduct; (b) the relationship between the parties; (c) the severity and probability of the risk; (d) the availability of alternative remedies; and (e) the practical administrability of a duty rule. Classic examples include the economic loss doctrine (limiting duty for purely economic harms arising from negligent conduct), the social host immunity rule in many jurisdictions, and the traditional limitations on liability for emotional distress absent physical impact or zone-of-danger presence.

SECTION 5

Special Duty Rules — Detailed Breakdown

Several categories of duty questions arise so frequently on the bar exam that they merit dedicated attention. These special rules represent judicial or legislative modifications to the general duty framework, and each carries its own analytical structure and set of exceptions.

This reference chart maps the four most heavily tested special duty categories on the bar exam: landowner duty (with its traditional trichotomy and modern alternatives), NIED (with zone-of-danger and bystander tests), third-party conduct (including Tarasoff), special relationships, and voluntary assumption of duty.

⚠️ BAR EXAM TIP

The MBE frequently tests the attractive nuisance doctrine as an exception to the general no-duty-to-trespassers rule. Remember the five elements under Restatement (Second) § 339: (1) the landowner knows or should know children are likely to trespass; (2) the condition poses an unreasonable risk of serious injury or death; (3) children, because of their youth, do not appreciate the danger; (4) the utility of the condition is slight compared to the risk; and (5) the landowner fails to exercise reasonable care to eliminate the danger or protect children.

SECTION 6

Worked Example — Applying the Duty Framework

Consider the following fact pattern, typical of MBE-style duty questions:

📋 FACT PATTERN

Dr. Marsh, a licensed physician, was eating lunch at a sidewalk café when she witnessed a pedestrian collapse across the street, apparently suffering a heart attack. Several bystanders gathered but no one provided medical assistance. Dr. Marsh continued eating her lunch and did not render aid. The pedestrian died. The pedestrian's estate sues Dr. Marsh for negligence. Does Dr. Marsh owe a duty of care to the pedestrian?

Duty Analysis — Dr. Marsh Hypothetical

Step 1 — Classify as Misfeasance or NonfeasanceDr. Marsh did not engage in any affirmative conduct that created the risk of harm to the pedestrian. The pedestrian's heart attack arose independently of anything Dr. Marsh did. Dr. Marsh's conduct—or rather, her inaction—is properly classified as nonfeasance. Under the common law, the default rule for nonfeasance is that there is no affirmative duty to rescue, regardless of how easy the rescue might be.

Classification: Nonfeasance → No duty is the default

Step 2 — Check for Special RelationshipIs there a recognized special relationship between Dr. Marsh and the pedestrian? The pedestrian is a stranger—there is no doctor-patient relationship, no common carrier–passenger relationship, no employer-employee relationship, and no other custodial or protective relationship. The mere fact that Dr. Marsh happens to be a physician does not, under American common law, create a special relationship with every person in medical distress. A doctor-patient relationship requires a voluntary undertaking to provide treatment, which Dr. Marsh never initiated.

No special relationship exists between Dr. Marsh and the pedestrian

Step 3 — Check for Other Exceptions to No-Duty RuleWe must systematically evaluate the remaining exceptions. Did Dr. Marsh create the peril? No—the heart attack was independent of her conduct. Did Dr. Marsh voluntarily assume a duty by beginning a rescue? No—she never commenced any aid. Is there a statutory duty to rescue in the jurisdiction? Under the common law as tested on the MBE, there is no general statutory duty to rescue (though a few states, like Vermont and Minnesota, have enacted such statutes). Does Dr. Marsh have control over a third party causing the harm? No—there is no third-party tortfeasor involved. Because none of the recognized exceptions to the no-duty-to-act rule is present, no exception applies on these facts.

No exception to the no-duty-to-act rule applies

Step 4 — ConclusionAlthough Dr. Marsh could easily have rendered potentially life-saving assistance, and although her failure to do so may be morally blameworthy, the common law imposes no legal duty on her in this scenario. The negligence claim will fail at the duty element. This result illustrates the fundamental common law distinction between moral obligation and legal duty—a distinction that the bar exam tests frequently and that students must internalize.

RESULT: No duty of care exists. Negligence claim fails.

Step 5 — Alternative: What If Dr. Marsh Had Begun the Rescue?Now change the facts: Dr. Marsh begins performing CPR, other bystanders walk away relying on her intervention, and then Dr. Marsh suddenly stops and returns to her lunch. Under the voluntary assumption doctrine, Dr. Marsh has now assumed a duty of reasonable care. She cannot abandon the rescue if doing so leaves the victim in a worse position than before she intervened—particularly because other potential rescuers may have been deterred by her initial action. Under these modified facts, duty exists, and the analysis would proceed to breach, causation, and damages.

Modified facts: Duty exists via voluntary assumption of duty

SECTION 7

Competing Frameworks — Cardozo vs. Andrews

The Palsgraf decision produced two enduring approaches to analyzing duty, and understanding the structural differences between the Cardozo majority and the Andrews dissent is critical for bar examination success. These approaches do not merely differ in conclusion—they differ in where, conceptually, the foreseeability analysis is housed within the negligence framework.

Comparison of Cardozo and Andrews approaches to duty and foreseeability

Feature	Cardozo (Majority View)	Andrews (Minority View)
Where foreseeability is analyzed	Duty element — foreseeability limits who can sue	Proximate cause element — foreseeability limits scope of liability
Scope of duty	Duty owed only to foreseeable plaintiffs within the zone of danger	Duty owed to all; everyone injured by negligent act may sue
Nature of duty determination	Relational — depends on the connection between defendant's act and specific plaintiff	Universal — negligent conduct creates a duty to all
Role of judge vs. jury	Judge decides duty (law); may dispose of case before jury considers breach	Proximate cause is a jury question, so more cases reach the jury
Bar exam status	Majority rule — tested as the default on MBE	Minority rule — know for essay analysis and comparison
Practical effect	Limits liability more narrowly; more cases dismissed at duty stage	Expands potential liability; more plaintiff-friendly

✦ KEY TAKEAWAY

The Cardozo-Andrews debate is not merely academic—it reflects a fundamental structural choice about negligence architecture that has real consequences for how cases are decided. Think of it like designing a building's fire suppression system: Cardozo installs a security gate at the front door (duty), screening out people who shouldn't be in the building at all. Andrews lets everyone in but installs sprinklers throughout (proximate cause) to contain the damage. Both approaches ultimately limit liability, but they do so at different stages of the negligence analysis and with different institutional actors (judge vs. jury) making the critical determination.

SECTION 8

Connection to Advanced Theory — Restatement (Third) & Modern Trends

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) represents a significant reconceptualization of the duty element. Under the Third Restatement's approach, foreseeability is largely removed from the duty analysis and relocated to breach and proximate cause. The general duty of reasonable care is treated as the default rule for all actors, and duty becomes a narrower, more purely legal question: should the court, as a matter of policy, decline to apply the default rule in this category of cases? This approach treats no-duty rulings as categorical exceptions—applicable to classes of cases, not to individual fact patterns.

Evolution from Restatement (Second) to Restatement (Third) duty analysis

Feature	Restatement (Second) Approach	Restatement (Third) Approach
Role of foreseeability in duty	Foreseeability is central to the duty analysis; the foreseeable plaintiff doctrine controls who is owed a duty	Foreseeability is removed from duty and placed entirely in breach and proximate cause
Default rule	General duty exists if plaintiff is foreseeable	General duty exists for all actors engaging in conduct creating risk; no-duty is the exception
No-duty rulings	Can be case-specific based on facts	Must be categorical—applicable to entire classes of cases based on policy
Landowner liability	Trespasser/licensee/invitee categories control duty	General reasonableness standard (similar to Rowland); entrant status is one factor
Bar exam relevance	Still the dominant framework tested on MBE	Increasingly influential; know for essay questions and jurisdictional trend analysis

For bar exam purposes, be prepared to apply the traditional foreseeability-centered duty analysis on multiple-choice questions while also being able to discuss the Third Restatement's policy-centered approach on essay questions. Several jurisdictions—including Iowa, California, and Connecticut—have adopted or incorporated elements of the Third Restatement's framework. The trend suggests a gradual shift toward treating duty as a purely legal, policy-driven determination rather than a fact-specific foreseeability inquiry, though the MBE continues to test the traditional approach as the default rule.

SECTION 9

Practice Problems

PROBLEM 1 — CONCEPTUAL

A strong swimmer is sunbathing at a public beach when she notices a child struggling in the water. No lifeguard is on duty and no one else is nearby. The swimmer does not attempt to help, and the child drowns. Under the common law, does the swimmer owe a duty of care to the child? Explain why or why not.

PROBLEM 2 — BASIC APPLICATION

A driver runs a red light and collides with a cyclist who was crossing the intersection with the green light. Does the driver owe a duty of care to the cyclist? Identify the type of conduct (misfeasance or nonfeasance) and apply the appropriate duty framework.

PROBLEM 3 — INTERMEDIATE

A hotel guest is assaulted by an intruder in the hotel hallway at 2:00 AM. The hotel had functioning security cameras but only one security guard for a 200-room property, and the entrance door lock had been broken for two weeks. The guest sues the hotel for negligence. Analyze whether the hotel owes a duty of care to the guest, addressing both the general duty framework and any applicable special rules.

PROBLEM 4 — APPLIED

A psychiatrist is treating a patient who repeatedly expresses detailed plans to harm a specific, identifiable victim. The psychiatrist does not warn the potential victim or notify police. The patient subsequently attacks and seriously injures the victim. Analyze whether the psychiatrist owes a duty of care to the victim, addressing the general no-duty-to-act rule, the Tarasoff principle, and any relevant policy considerations.

PROBLEM 5 — CRITICAL THINKING

A social media company operates a platform used by millions of teenagers. The company's algorithm is designed to maximize engagement and has been shown through internal research to increase rates of anxiety and self-harm among adolescent users. A group of parents sues the company for negligence, alleging that the company owes a duty of care to minor users harmed by the platform. Analyze the duty question from both the Restatement (Second) foreseeability framework and the Restatement (Third) policy-based framework. How might the outcome differ under each approach?

SUMMARY

Summary — Duty of Care: Determining Whether Duty Exists

Duty is the threshold legal question in every negligence claim, decided by the judge as a matter of law. The analysis begins by classifying the defendant's conduct as misfeasance (affirmative conduct creating risk, triggering the general duty of reasonable care) or nonfeasance (failure to act, where the default is no duty to rescue). In misfeasance cases, the Cardozo foreseeable plaintiff test (the MBE majority rule) limits duty to plaintiffs within the zone of danger created by the defendant's conduct.

Exceptions to the no-duty default for nonfeasance include special relationships (innkeeper-guest, common carrier-passenger, employer-employee, school-student, landlord-tenant), voluntary assumption of duty, creation of peril, statutory duties, and control over a dangerous third party (including the Tarasoff duty to warn). Special duty categories—landowner liability (trespasser/licensee/invitee or modern reasonableness), NIED (zone-of-danger and bystander tests), and the attractive nuisance doctrine—each carry their own analytical frameworks that must be applied in addition to the general duty analysis.