Issues & Arguments Negligence

The duty element revisited

Written by: Thomas A. Downie September 12, 2022 Read Time: 5 min

This post is part of a series. Here is the full series list:

This is the second of three posts on the “duty” element in a negligence case.  In the initial post, Pleading the element of duty, I suggested that both the duty element and proximate cause depend on “foreseeability.” Most cases say that. In the course of the research, however, I discovered that some courts take a different approach to the duty element. This post examines the alternative viewpoints and their consequences.

Foreseeability or Responsibility?

The mainstream approach defines the duty element as a function of foreseeability. Simply put, the “foreseeability of harm to the person injured” gives rise to “a duty of care toward that person.” E.g., Herrera v. Quality Pontiac, 134 N.M. 43, 73 P.3d 181, 186 (2003).

Other courts approach the duty element from a different perspective. They begin with the axiom that “[t]he existence of a duty in a negligence action is a question of law for the court to determine.” Mussivand v. David, 45 Ohio St. 3d 314, 318, 544 N.E.2d 265 (1989), quoted in Crumb v. Leafguard by Beldon, Inc., 2020-Ohio-796, at ¶24 (Ohio App. 2020). They then base their determination on “policy” grounds. Per Mussivand, “[a]ny number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.” Id. (quoting Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953)).

The New York Court of Appeals has distinguished this “policy” approach from one involving foreseeability. Palka v. Servicemaster Mgt., 83 N.Y.2d 579, 634 N.E.2d 189 (1994). According to Palka, “the boundaries of duty are not simply contracted or expanded by the notion of foreseeability.”  Rather, “[c]ourts traditionally … fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” 83 N.Y.2d at 586.

By What Standard?

The policy approach sounds logical on its face.  Shouldn’t we “fix the duty point” by making it “a legal, policy-laden declaration reserved for Judges”? Palka, 83 N.Y.2d at 586. 

Yet, the policy considerations articulated in Palka and Mussivand seemed ill-defined. Palka acknowledged as much, stating that the existence of a duty was “not something derived or discerned from an algebraic formula.” Id. at 585. Accord, Mussivand, 45 Ohio St. 3d at 318. It “coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility.” Id. As if sensing that tension, the New York court described its legendary Chief Judge Cardozo, who authored Palsgraf, as having “sagely instructed” courts “to search for this shimmering line of duty.” Id. at 586.

The policy approach invites the court to make “a social judgment as to where the loss should fall.” Mussivand, 45 Ohio St. 3d at 318. Should that decision be made by the court alone, on arguably amorphous standards?

A Question of Relationship?

Yet another view of the duty element was articulated by the Michigan Supreme Court in Moning v. Alfono, 400 Mich. 425, 254 NW 2d 759 (1977). A 12-year-old lost sight in one eye when he was struck by a slingshot fired by his 11-year-old playmate. The plaintiff sued the manufacturer, wholesaler, and retailer, claiming that marketing slingshots to children was negligent. Id. at 432. The trial court granted a directed verdict for the defendants.

The Supreme Court reversed. In its view, the existence of a duty was “essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation.” 400 Mich. at 439 (citing Prosser, Torts § 37 (4th ed) (emphasis added)). In a negligence case, the standard of conduct “is reasonable or due care.” Id. at 443 (citing Restatement Torts 2d, § 283). Thus “the duty is always the same”—”to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Id. (quoting Prosser, Torts § 53).

Moning defined “relationship”—and therefore “the existence of a duty”—on the basis of “apparent risk” to the injured party. That’s essentially the foreseeability approach, with “relationship” added as a component.

Shifting to a Foreseeability Question for the Jury

The Ohio case, Mussivand, was both interesting and difficult.  The defendant was sued for failing to disclose that he’d contracted a venereal disease. The plaintiff wasn’t his sexual partner, though, but rather the husband of the partner. The defendant argued that “while he may have had a duty to appellee’s wife to disclose his condition, this duty does not extend to appellee [husband].” 45 Ohio St. 3d at 320.

The Ohio Supreme Court could have decided the case on “policy” grounds.  Instead, the Court turned to the foreseeability approach. “The existence of a duty,” the Court said, “depend[ed] on the foreseeability of the injury to appellee.” 45 Ohio St. 3d at 320-21. The defendant, having “engaged in sexual relations with a married woman,” should have reasonably anticipated that her husband would also be exposed. Id. at 321.

While the Ohio and Michigan courts agreed that the duty element was “solely for the court to decide,” Moning, 400 Mich. at 436-37; Mussivand, 45 Ohio St. 3d at 318, the courts utilized standards that were well-grounded on evidence—“apparent risk,” in one case, and “foreseeability” in the other. 

In appropriate cases, courts can frame the duty element as an evidence-based issue for the jury. The Crumb case (cited above) illustrates that result. Having shifted to the foreseeability approach, as Mussivand had done, the appellate court found that “there are questions remaining for determination by the jury as to whether LeafGuard breached its duty toward William [and] whether that breach was the proximate cause of William’s injury.” Crumb, 2020-Ohio-796, at ¶39.

The third post in this series will address the further question of “intervening cause.”

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.