Duty

Question 1

When no duty is apparent, how do courts analyze negligence claims.

Answer 1

“[w]hen determining whether a duty of care exists in a particular set of circumstances, [a] court will consider … the reasonable foreseeability that the defendant’s conduct may injure another.” (Zokrabov)

Question 2

Would mere possibility of something happening lead to a duty?

Answer 2

No. The occurrence must be reasonably foreseeable. If the probability is close to zero then a duty probably will not be applied. (Van Skike)

Question 3

How does duty fit into the BPL formula for negligence?

Answer 3

In addition to finding no duty based on the low probability (P) of a particular accident, courts sometimes conclude that a given precaution is unreasonable as a matter of law because the burden (B) of preventing the accident exceeds the benefits (PL) of doing so. Courts may do this when a case “presents a recurring problem that leads courts to conclude … that the negligence determination should be made by the court rather than by the jury,” and “it is common for courts to express the conclusions they reach in such cases in terms of ‘duty’” (Third Restatement of Torts § 7, cmt. f).