Failure to Act
The default rule is stark: you owe no legal duty to rescue a stranger, even when a rescue would be easy and costless.
6. Negligence: Duty of Care – Failure to Act
Individuals have no duty to act to save another person from harm unless a special relationship exists or the individual caused the peril to the other person.
- Under the common law, a failure to act (even to save another in peril) is not a breach of the duty of care in the absence of (1) a special relationship or (2) circumstances in which the defendant caused the peril to the plaintiff.
- Special relationships include the dependency relationships between parent/child or teacher/student, custodial relationships like prison/prisoner, and contractual relationships where a party has agreed to provide aid.
The default is no duty to rescue a stranger, even an easy, costless rescue. An affirmative duty to act arises only from a special relationship or because the defendant caused the peril.
The default rule is stark: you owe no legal duty to rescue a stranger, even when a rescue would be easy and costless. A bystander can watch a stranger drown and owe nothing in tort. Morality and law part ways here. The duty of reasonable care, which governs how you act, does not impose a duty to act in the first place.
- 1A special relationship between the defendant and the person in peril. The scope text gives the categories: dependency relationships (parent/child, teacher/student), custodial relationships (prison/prisoner), and contractual relationships where the defendant has agreed to provide aid. Because the heading word is "include," the list is illustrative of the kinds of relationships that count, not an exhaustive checklist.
- 2The defendant caused the peril. If your own conduct put the plaintiff in danger, you must take reasonable steps to help, and this is true even if you created the peril innocently and without fault.
Absent one of these two triggers, inaction is not a breach, and the negligence claim fails at the duty stage before breach, causation, or damages are ever reached.
How easy, costless, or risk-free the rescue would have been is legally irrelevant to duty, and so is a moral obligation to help. Check only for a special relationship or a created peril.
Memory hook: "No duty to rescue, unless you are Related or Responsible."
Related = a special relationship (parent/child, teacher/student, jailer/prisoner, or a contract to provide aid).
Responsible = you caused the peril, even innocently.
One-line cue card: A stranger in peril plus a defendant who is neither related nor responsible equals no duty, so no breach, so no liability.
Find a relationship or a created peril, or the claim dies at duty.
A hotel guest collapses from a heart attack in the lobby. Two people are standing nearby: another guest, and the front-desk clerk on duty.
An option states the no-duty rule as an absolute ("a person never owes a duty to rescue") or makes the duty universal ("anyone able to help must"). Look for never, no one, always, anyone.
The rule is conditional: a special relationship or a defendant-created peril creates the duty. Name the trigger present (or absent) instead of treating the rule as all-or-nothing.An option manufactures a duty from the general duty of reasonable care ("everyone owes a duty of care to foreseeable plaintiffs nearby").
Separate misfeasance from nonfeasance. The general duty governs how one acts; a duty to act in the first place requires a special relationship or a created peril.An option leans on how easy, costless, or risk-free the rescue would have been, or on a moral obligation to help.
Ease and morality are legally irrelevant to duty. Check only for a special relationship or a created peril.An option reaches the right yes/no but on a wrong ground, such as keying the result to intent, to a request for help, or to a failure of causation.
State the operative point: the presence or absence of a duty to act, which turns on a special relationship or a created peril, not on intent, a request, or causation.the stem shows a defendant who does nothing while someone is hurt or in danger, and the call asks whether the defendant is liable or owed a duty.
The instant the claim is built on inaction (a failure to rescue, warn, summon help, or intervene), run the two-trigger check: is there a special relationship between these parties, and did the defendant cause the peril?
If neither, there is no duty and the claim fails.
If the stem plants a parent, teacher, jailer, hotel, common carrier, or someone who agreed to provide aid, or shows the defendant creating the danger, the duty is on.
A community pool hired a lifeguard and assigned him to watch the swimmers during open hours. One afternoon the lifeguard left his chair to check his phone in the shade. While he was away, a child swimmer began to struggle in the deep end. The lifeguard saw the child but kept scrolling and did nothing, and the child suffered serious injury before another patron pulled her out. The child's parents sued the lifeguard for negligence.
Is the lifeguard likely to owe the child a duty to act?
A driver was carefully backing out of a parking space when, through no fault of her own, her car clipped a pedestrian who had darted behind it, knocking him to the ground and injuring his leg. The driver got out, saw the pedestrian lying in the lane unable to move, and simply drove off without summoning help or moving him to safety. The pedestrian was then struck again by passing traffic. He sued the driver for negligence based on her failure to assist him after the first impact.
Is the pedestrian likely to establish that the driver owed him a duty to act?
A county jail held a detainee who told the on-duty jailer that another inmate had threatened to attack him and asked to be moved. The jailer had time and an empty cell available but ignored the request and took no protective steps. That night the other inmate attacked the detainee, who was seriously hurt. The detainee sued the jailer for negligence for failing to protect him.
Does the jailer owe the detainee a duty to act?
A man was walking on a public sidewalk when he noticed an elderly stranger several feet ahead suddenly clutch his chest and collapse. The man had a working phone and could easily have called for an ambulance, but he found the situation unpleasant and simply walked around the stranger and continued on his way. The two had never met, and the man had nothing to do with the stranger's condition. The stranger died, and his estate sued the man for negligence.
Is the estate likely to prevail on its negligence claim?
A grade-school teacher took her class to a public park for a field trip. During the outing one of her young students wandered toward a fast-moving creek at the edge of the park. The teacher noticed the child heading for the water but turned back to chat with another adult and did nothing to stop or warn the child. The child fell into the creek and was badly hurt. The child's parents sued the teacher for negligence.
Is the teacher likely to owe the child a duty to act?