PastPaperHero | Negligence - The duty question

Learning Outcomes

This article explains how to analyze the duty element in negligence for MBE-style questions, including:

Identifying when a duty of reasonable care arises and determining to whom it is owed using foreseeability and the “zone of danger” framework
Distinguishing duty from standard of care, breach, causation, and damages so you do not skip the threshold issue in multiple-choice analyses
Recognizing special duty situations involving rescuers, common carriers, innkeepers, landowners, parents, custodians, employers, and other protective relationships
Applying rules on affirmative duties to act, voluntary undertakings, statutory and contractual duties, negligent entrustment, and negligent hiring or supervision
Evaluating landowner and occupier duties to trespassers, licensees, invitees, and child trespassers, including attractive nuisance problems
Using negligence per se to link statutory violations to duty and breach and spotting when public policy limits duty, such as with economic loss and third-party criminal acts
Working through recurring MBE duty patterns, including NIED, unforeseeable plaintiffs, criminal acts of third parties, and failures to protect or rescue, to choose the best answer grounded in duty analysis

MBE Syllabus

For the MBE, you are required to understand the principles governing the existence and scope of the duty of care in negligence with a focus on the following syllabus points:

General duty of reasonable care and the foreseeability / “zone of danger” test
Unforeseeable plaintiffs and limits on liability (e.g., Palsgraf)
Special duty situations (rescuers, common carriers, innkeepers, landowners, custodial relationships)
Affirmative duties to act and their exceptions
Statutory duties and negligence per se
Public policy limits on duty (no duty to rescue, no duty to control third parties absent special relationship, etc.)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

In a negligence action, to whom does a defendant owe a duty of care?
1. Only to plaintiffs with whom the defendant has a contract
2. Only to plaintiffs who suffer physical harm
3. To all foreseeable plaintiffs within the zone of danger
4. To anyone who suffers harm, foreseeable or not
Which of the following best describes the "zone of danger" rule?
1. Duty is owed to all persons in the world
2. Duty is owed only to those at risk of direct physical impact
3. Duty is owed to those foreseeably endangered by the defendant's conduct
4. Duty is owed only to rescuers
Which of the following is generally NOT a recognized special duty situation?
1. Common carrier to passenger
2. Landowner to undiscovered trespasser
3. Parent to child
4. Innkeeper to guest

Introduction

Negligence has four elements: duty, breach, causation, and damages. The duty element is the threshold question: did the defendant owe this plaintiff a legal obligation to act with reasonable care?

If there is no duty, the negligence claim fails regardless of how careless the defendant was in fact. On the MBE, many negligence questions turn on this first step.

Key Term: Duty of Care
The legal obligation to conform to a standard of conduct (usually that of a reasonably prudent person) to protect others from unreasonable risk of harm.

It is also important to separate duty from the standard of care and breach:

Duty asks whether any obligation is owed to this plaintiff at all.
Standard of care asks what level of care is required (usually a reasonably prudent person under the circumstances, sometimes a heightened or modified standard).
Breach asks whether the defendant’s conduct fell below that standard.

On MBE questions, many tempting but wrong answer choices jump ahead to breach, causation, or damages when the better answer is that no duty exists.

This section focuses on when a duty arises, to whom it is owed, and the special situations where duty is expanded, limited, or arises in an unusual way.

The General Rule: Foreseeable Plaintiffs

The default rule is that a person owes a duty of reasonable care to all persons who are foreseeably endangered by their conduct.

Key Term: Foreseeability
In negligence, foreseeability asks whether a reasonable person in the defendant’s position would have anticipated a risk of harm of the general type suffered by the plaintiff.

Under the majority approach (Cardozo’s view in Palsgraf), duty runs only to foreseeable plaintiffs who are within the zone of danger created by the defendant’s conduct. This is a scope-of-duty question, not a question about the precise sequence of events.

Key Term: Zone of Danger
The area in which a reasonable person would recognize that their conduct creates a risk of physical harm, such that persons within that area are owed a duty of care.

Some clarifications important for the MBE:

Foreseeability is about the general type of harm, not the exact chain of events.
You do not need to foresee the extent of harm (the “eggshell skull” plaintiff still recovers); but you do need to foresee that someone like this plaintiff was at risk in the first place.

On the MBE, unless the question clearly signals otherwise, assume this foreseeable plaintiff / zone of danger approach to the existence of duty.

Foreseeability of Plaintiff vs. Foreseeability of Harm

Duty focuses on the foreseeability of the plaintiff, not the fine details of how the harm unfolded:

If the plaintiff was in the class of persons foreseeably at risk from the conduct (e.g., other road users when someone speeds through a red light), duty exists.
Whether the harm happened in a freakish sequence is usually a proximate cause problem, not a duty problem.

Keep separate:

Foreseeability of plaintiff → duty question
Foreseeability of manner and extent of harm → proximate cause / damages questions

The "Zone of Danger" Principle

The zone of danger concept is a boundary line on duty:

Persons inside the zone: duty is owed.
Persons outside the zone: generally no duty, because they are not foreseeable plaintiffs with respect to that conduct.

The exact boundaries are fact-dependent. The MBE often tests your ability to apply common sense: who is realistically at risk from what the defendant was doing?

Factors that often matter:

Distance in space (how far from the risky conduct)
Distance in time (how closely the injury followed the risk-creating conduct)
Whether the plaintiff’s presence was typical or unusual in that setting
Whether similar harms to similar plaintiffs have occurred or are widely recognized as likely

Cardozo vs. Andrews (Palsgraf)

In Palsgraf v. Long Island Railroad, Cardozo (majority) held that the railroad owed no duty to a woman standing far down the platform because she was not within the foreseeable range of harm from the negligent assistance given to a boarding passenger.

Andrews (dissent) would impose a duty to the world at large and shift the foreseeability analysis to proximate cause. A few jurisdictions follow this minority view, but for the MBE, treat duty as limited to foreseeable plaintiffs under Cardozo’s approach unless the question clearly says otherwise.

Key Term: Unforeseeable Plaintiff
A plaintiff who was not reasonably within the scope of risk created by the defendant’s conduct; under the majority rule, no duty is owed to such a plaintiff for that conduct.

Negligent Infliction of Emotional Distress (NIED) and the Zone of Danger

Negligent infliction of emotional distress is essentially a duty problem: in what situations does the defendant owe a duty to avoid causing purely emotional harm?

Key Term: Negligent Infliction of Emotional Distress (NIED)
A negligence claim seeking recovery for emotional distress (often with physical manifestations) caused by the defendant’s negligence, without direct physical impact to the plaintiff.

Two common NIED patterns on the MBE:

Zone-of-danger NIED (majority rule):
- Duty is owed to plaintiffs who:
  - Are within the zone of danger of the defendant’s negligent conduct (at risk of physical impact), and
  - Suffer emotional distress with physical symptoms or objective manifestations.
- Example: A driver negligently swerves toward a pedestrian, missing her by inches; she suffers severe emotional trauma and develops insomnia and ulcers. She may recover under zone-of-danger NIED.
Bystander NIED (closely related):
- Many jurisdictions recognize duty to a plaintiff who:
  - Is closely related to the victim (e.g., spouse, parent, child),
  - Is present at the scene and contemporaneously perceives the event, and
  - Suffers serious emotional distress (often with physical symptoms).
- Example: A parent watches a negligently driven car hit her child and suffers severe shock.

On the MBE:

If the question uses “zone of danger” in the NIED context, think duty to avoid exposing plaintiffs to risk of physical impact, even if the actual injury is emotional.
If the question highlights close family, presence, and contemporaneous observation, you are likely in a bystander NIED framework.

Unforeseeable Plaintiffs

If a plaintiff is unforeseeable—outside the zone of danger—no duty is owed and the claim fails at the duty stage.

Typical MBE patterns:

A minor, freakish chain of events injures someone far away (falling boxes, exploding tanks, distant bystanders).
A bystander well removed from the hazard is injured in a surprising way.

If the exam question emphasizes that:

The plaintiff was distant in time or space, and
There was nothing about the situation that would alert a reasonable person to danger to that plaintiff,

you should strongly consider answering that no duty was owed because the plaintiff was unforeseeable.

Contrast this with the eggshell-skull rule (usually tested under damages):

Once a foreseeable plaintiff is harmed, the defendant takes the plaintiff as they find them and is liable for the full extent of harm, even if it is far greater than expected.
Eggshel l-skull goes to extent of harm, not to whether a duty was owed in the first place.

Special Duty Situations: Rescuers and “Danger Invites Rescue”

Foreseeability is broadened in certain contexts to reflect policy judgments. One of the most important is the rescuer doctrine.

Key Term: Rescuer Doctrine
A principle that a person whose negligence puts themselves or another in danger owes a duty of care to rescuers; “danger invites rescue,” so rescuers are treated as foreseeable plaintiffs.

Even if a rescuer is not in the initial zone of danger, the law treats the rescuer as foreseeable as a matter of policy. Therefore:

A defendant who negligently creates a risk of harm owes a duty to the person directly endangered and to any rescuer acting reasonably.
This includes rescuers injured while going to the rescue or while attempting it, even if the rescue attempt itself is somewhat careless (but not reckless).
The rescue does not have to be successful; duty is owed as soon as the rescuer undertakes a reasonable rescue attempt.

Professional rescuers – the firefighter’s rule:

Many jurisdictions restrict recovery by professional rescuers (firefighters, police) for injuries arising from the very risks typical of their job and triggered by the defendant’s negligence. The idea is that professionals are compensated and trained for those risks.

On the MBE:

Look for language explicitly invoking this rule, or for a fact pattern clearly involving on-duty police or firefighters injured by the very hazard that summoned them.
If the firefighter’s rule is not mentioned and the fact pattern is ambiguous, it is usually safer to treat rescuers as foreseeable plaintiffs and find that a duty exists.

Prenatal Injuries

Duty can extend to unborn children in certain ways. The MBE primarily tests only the outline of these doctrines.

A doctor or driver owes a duty of care not just to a pregnant woman but also to a viable fetus.
A child later born alive can bring a claim for injuries suffered in utero caused by negligence toward the mother (for example, negligent prenatal care or negligent driving causing a collision).

Parental claims such as wrongful birth or wrongful pregnancy are sometimes tested under damages rather than duty. For the duty element, it is enough to recognize that the defendant’s duty of reasonable care can run to the fetus where injury is foreseeable.

Most jurisdictions do not recognize “wrongful life” actions by the child claiming that it would have been better not to be born at all; if that appears in an answer choice, it is usually wrong.

Affirmative Duties to Act

The starting rule is stark:

No general duty to rescue or aid another, even if it could be done easily and safely.

This often surprises examinees, but it is a frequent MBE trap. There is no duty simply because a person sees another in danger.

Key Term: Affirmative Duty to Act
An obligation to take positive steps to aid or protect another. This duty does not usually exist at common law unless a special relationship or other specific basis creates it.

There are, however, well-established exceptions where an affirmative duty does arise.

1. Defendant Created the Risk

If the defendant’s conduct—negligent or not—creates a risk of harm, the defendant has a duty to take reasonable steps to prevent or minimize that harm.

Examples:

A driver whose car stalls in traffic has a duty to use reasonable care (e.g., turn on hazard lights, try to move the car).
A store employee spills liquid on the floor; the store now has a duty to clean it up or warn customers within a reasonable time.
A homeowner accidentally knocks a heavy object off a balcony; they must take reasonable steps to warn or protect people below.

Note that the risk-creating conduct need not be negligent. Even if the car stalled without negligence, once the risk exists, a duty arises to act reasonably in dealing with it.

2. Special Relationships

Certain relationships impose an affirmative duty to take reasonable steps to aid or protect the other person. Common MBE examples:

Common carrier ↔ passenger
Innkeeper ↔ guest
Business or land possessor holding premises open to the public ↔ invitees (store–customer, theater–patron, etc.)
Employer ↔ employee
School ↔ student
Parent ↔ child
Custodian ↔ person in custody (jailers, psychiatric institutions)
Sometimes: mental health professional ↔ patient (duty to warn identifiable victims of serious threats)

The scope of the duty is to use reasonable care under the circumstances, which often means summoning medical help or taking basic protective measures—not guaranteeing safety.

Parents also have a duty to exercise reasonable care in supervising and controlling their minor children.

If a parent knows or should know of the child’s dangerous tendencies and has the ability to control the child, the parent has a duty to exercise reasonable control.
This often comes up as negligent supervision or negligent failure to control when a child injures others.

3. Voluntary Undertaking

If a person voluntarily undertakes to aid another, they must perform with reasonable care and cannot leave the person worse off.

Key points for the MBE:

Once aid is begun, there is a duty not to act negligently in providing it.
In many jurisdictions, there is a duty to continue help at least until it is reasonable to stop (for example, when professional help arrives).
If others reasonably rely on the undertaking (e.g., a business employee assures customers “we will handle security”), that reliance can expand the scope of duty.

“Good Samaritan” statutes sometimes modify civil liability for rescuers; if mentioned in the fact pattern, apply the statute’s terms. Typically:

They protect lay rescuers from ordinary negligence claims but not from gross negligence or recklessness.
They do not create a new duty; they limit liability for those who choose to help.

4. Contractual and Statutory Duties

A contract to protect another (lifeguard, security guard, nurse) or a statute that imposes a specific duty (reporting child abuse, obeying safety codes) can create an affirmative duty. The negligence analysis then asks whether failure to perform that duty was unreasonable and caused the plaintiff’s harm.

Also related are negligent entrustment and negligent hiring/retention, which essentially impose a duty based on the defendant’s control over risk-creators.

Key Term: Negligent Entrustment
A claim that arises when one person (the entrustor) gives a dangerous instrumentality (such as a car or firearm) to another whom the entrustor knows or should know is likely to use it in a way that creates an unreasonable risk of harm.

Key Term: Negligent Hiring
A claim against an employer alleging that the employer was negligent in hiring, supervising, or retaining an employee who the employer knew or should have known posed a risk of harm to others.

Typical patterns:

Loaning a car to an obviously intoxicated friend who then injures someone.
Hiring a delivery driver without checking a record of drunk driving convictions.

Here, the duty arises from the defendant’s choice to entrust the dangerous item or position to an unfit person.

Landowner and Occupier Duties

One of the most tested special duty areas is the duty of owners and occupiers of land. The traditional approach classifies entrants and adjusts the duty owed accordingly.

Key Term: Landowner Duties
The obligations owed by possessors of land to persons who enter the property, often varying by the entrant’s status as trespasser, licensee, or invitee.

Unless the question tells you the jurisdiction follows a modern “reasonable care to all lawful entrants” rule, apply the traditional categories.

First, define the categories:

Key Term: Trespasser
A person who enters or remains on land without permission or legal privilege.

Key Term: Licensee
A person who enters or remains on land with permission for their own purposes, not for a purpose connected with the landowner’s business (e.g., social guests).

Key Term: Invitee
A person invited onto land for a purpose connected with the possessor’s business (business invitee) or because the land is held open to the public (public invitee).

Traditional duties:

Unknown (undiscovered) trespasser:
- No duty to make land safe or to inspect.
- Only duty is to avoid intentional, willful, or wanton injury (e.g., spring guns).
Known or anticipated trespasser:
- Duty to warn of or make safe known, concealed, artificial conditions posing risk of death or serious bodily harm (often summarized as conditions that are:
  - man-made,
  - highly dangerous,
  - concealed, and
  - known to the occupier).
- No duty as to natural conditions or obvious dangers for trespassers.
Licensee (social guest, someone on land with permission for their own purposes)
- Duty to warn of known, concealed dangers that the licensee is unlikely to discover.
- No duty to inspect for unknown dangers or to repair.
Invitee (customer in store, member of public on premises open to public, or person on land for a business purpose of the possessor)
- Duty to use reasonable care to inspect, discover, and make safe conditions the possessor knows of or should know of.
- This is a broader, more active duty than that owed to licensees.

Entrants can change category depending on where they go. A customer who ignores clear warnings and enters a prohibited, dangerous area may be treated as a trespasser as to that part of the property, reducing the duty owed.

On the MBE, pay close attention to:

Whether the entrant had permission
Whether the area entered was restricted
What the landowner knew or should have known about the hazard
Whether the hazard was open and obvious

Most jurisdictions hold that landowners have no duty to warn of open and obvious dangers as to adults, because they are expected to protect themselves. This is often tested with landowner questions where the risk (e.g., an obvious cliff or large open ditch) is apparent.

Child Trespassers and Attractive Nuisance

Children are treated differently where dangerous artificial conditions are involved.

Key Term: Attractive Nuisance Doctrine
A doctrine imposing a duty of reasonable care on land possessors to protect child trespassers from artificial conditions on the land that involve an unreasonable risk of death or serious harm, when certain conditions are met.

Typical requirements (paraphrasing Restatement rules widely followed on the MBE):

The land possessor knows or should know that children are likely to trespass in the area.
The condition poses an unreasonable risk of death or serious bodily harm to children.
Because of their youth, children do not discover or cannot appreciate the risk.
The utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk.
The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children.

Classic examples: unfenced swimming pools, old machinery, junkyards, trampolines.

The doctrine usually applies only to artificial conditions, not to natural conditions like ponds or cliffs, unless the jurisdiction extends it by statute.

Common Carriers and Innkeepers

Common carriers (buses, trains, airlines) and innkeepers owe a heightened duty to their passengers and guests.

Key Term: Common Carrier
A business that holds itself out to the public as willing to transport persons or goods for hire, such as buses, airlines, and railroads.

Key Term: Innkeeper
A business that provides lodging to the public for compensation, such as hotels and motels.

Key points:

Traditional rule: they must exercise the highest degree of care consistent with the practical operation of their business.
Modern trend: they must exercise reasonable care under the circumstances, but the circumstances require heightened vigilance because passengers and guests are in their custody and often vulnerable.
They have an affirmative duty to take reasonable steps to aid and protect passengers/guests against foreseeable harms, including some third-party criminal acts in certain situations.

They are not strictly liable; liability still depends on negligence.

A carrier can breach its duty by, for example:

Discharging a passenger in an unreasonably dangerous location (unlit area, known high-crime zone) when a safer alternative is readily available.
Failing to assist a visibly ill passenger when assistance would be easily provided.

Statutory Duties and Negligence Per Se

Statutes and regulations can define specific safety standards—traffic codes, building codes, food safety rules. A violation may short-circuit the common-law duty and breach analysis through negligence per se.

Key Term: Statutory Duty
An obligation imposed by statute or regulation, such as obeying traffic laws or safety codes, which may define the standard of care in negligence actions.

Key Term: Negligence Per Se
A doctrine under which an unexcused violation of a statute designed to protect a particular class of persons from a particular type of harm is treated as a breach of the duty of care as a matter of law.

Typically, a plaintiff must show:

The statute clearly sets out a standard of conduct.
The plaintiff is in the class of persons the statute was intended to protect.
The type of harm is the type of harm the statute was designed to prevent.
The defendant’s violation was unexcused.
The statutory violation was a factual and proximate cause of the injury.

Most jurisdictions treat negligence per se as establishing duty and breach, leaving causation and damages to be proved. Some treat it as a rebuttable presumption or merely evidence of negligence. If the fact pattern is silent, assume the majority approach: violation = breach as a matter of law if the prerequisites are met and no valid excuse exists.

Common legitimate excuses for statutory violations include:

Compliance was impossible despite reasonable care (e.g., brakes suddenly failed without fault).
Compliance would involve a greater risk of harm (e.g., stopping in the middle of a highway might be more dangerous than proceeding cautiously).
The actor is a child or otherwise lacks capacity addressed by the statute.
The statute is vague or confusing, and the actor made a reasonable effort to comply.

Example: A statute prohibits texting while driving to reduce car accidents. A driver rear-ends another car while texting. The injured driver fits the protected class (road users) and suffered the protected harm (auto collision), so the texting driver’s violation is negligence per se, assuming no valid excuse.

Statutes can also affect plaintiff conduct. On the MBE, a defendant may argue that a plaintiff’s statutory violation is contributory negligence if:

The statute was designed to protect people like the defendant from the type of risk that occurred, and
The plaintiff’s violation contributed to the harm.

However, when a statute is intended to protect a particular class of plaintiffs (e.g., child labor laws), courts often do not allow a defendant to use the plaintiff’s violation as contributory negligence.

Public Policy Limits on Duty

Public policy sometimes limits duty even when harm is foreseeable. Courts balance the costs of imposing a duty against broader social considerations.

Key Term: Economic Loss Rule
A principle that, absent physical injury or property damage, a defendant generally owes no duty to avoid causing purely economic loss to others, except in limited professional or contractual contexts.

Common limits tested on the MBE:

No duty to control third persons to prevent them from causing harm, absent a special relationship:
- Relationship to the wrongdoer (parent–child, employer–employee, therapist–patient with known danger to a specific victim).
- Relationship to the victim (common carrier–passenger, innkeeper–guest, business–invitee).
- Even when a special relationship exists, the duty is typically limited to reasonable precautions, such as warning, supervision, or security, not absolute protection.
No duty to avoid purely economic loss (lost profits, investment loss) in the absence of personal injury or property damage, except in limited professional contexts (e.g., lawyers, accountants in certain situations):
- Example: A negligent driver knocks out power to a neighborhood; businesses lose profits. The driver owes no duty to avoid those purely economic losses to non-injured businesses.
No general duty to protect against criminal acts of third parties:
- There may be a duty when special circumstances exist:
  - Special relationships (business–invitee, landlord–tenant, school–student).
  - Prior similar incidents putting premises owners on notice (e.g., repeated assaults in a parking lot).
  - Statutory duties (e.g., specific security requirements).
Social host liability:
- Many jurisdictions do not impose a general duty on social hosts for harms caused by adult guests’ drunk driving, whereas commercial vendors (bars) may have duties under dram shop statutes.
- If the question involves a casual party and adult guests, look for answers saying no duty for harm caused off-premises unless a statute is clearly applicable.

These limits are often framed as “no duty” issues on the exam. When a question emphasizes independent, criminal acts or purely financial loss, consider whether a duty limitation is the best-grounded answer choice.

Worked Example 1.1

A train operator negligently fails to secure a cargo door. A box falls and injures a bystander standing on the platform. Another person, standing far down the platform and not in the path of the box, is startled and suffers a heart attack. Who can recover?

Answer:
The bystander struck by the box is within the zone of danger and is a foreseeable plaintiff, so the operator owes a duty and may be liable if breach, causation, and damages are shown. The person far down the platform is likely outside the foreseeable range of physical danger from the falling box; under the majority rule, the operator owed no duty to that unforeseeable plaintiff with respect to this conduct, so the claim fails at the duty stage.

Worked Example 1.2

A store owner sees a customer collapse in the aisle and does nothing. The customer later suffers additional harm that could have been reduced by prompt medical attention. The customer sues for failure to aid. Is the store owner liable?

Answer:
There is generally no duty to rescue strangers. However, a business that holds its premises open to the public has a special relationship with its customers (business invitees) and therefore owes them a duty to take reasonable steps to aid or protect them. The store owner is not required to provide medical treatment but must act reasonably—for example, by calling emergency services. If doing nothing was unreasonable under the circumstances and this omission caused additional harm, the owner can be held liable for negligence.

Worked Example 1.3

A driver negligently runs a red light and hits a pedestrian, pinning her under the car. A passerby rushes in to lift the car but is injured when the car shifts. The passerby sues the negligent driver. The driver argues the passerby was outside the original zone of danger. Result?

Answer:
Under the rescuer doctrine, “danger invites rescue.” A negligent actor owes a duty to rescuers as foreseeable plaintiffs, even if they were not in the initial zone of danger. The driver therefore owed the passerby a duty of care. Unless the passerby’s rescue attempt was reckless, any ordinary carelessness by the rescuer will not bar recovery (subject to the jurisdiction’s contributory or comparative negligence rules).

Worked Example 1.4

A country club hosts a celebrity golf tournament. It has a clear policy and announcements requiring everyone not currently playing to stay off the course during play and warns of serious injury from entering the course. An adult member knowingly ignores the rule and walks onto the fairway to seek an autograph. He is struck by a golf ball and sues the club. The jurisdiction applies traditional landowner rules. Is the club liable?

Answer:
The member had permission to be on the club’s premises generally, but as to the playing area during tournament play, he exceeded permission and became a trespasser to that part of the land. For undiscovered trespassers, a landowner owes only a duty to avoid intentional or wanton injury; even for anticipated trespassers, the duty is limited to warning of known, concealed, man-made, highly dangerous conditions. Here the risk (being hit by a ball) was open and obvious, and the club gave clear warnings. Under traditional rules, the club did not breach any duty to the member and is not liable.

Worked Example 1.5

A homeowner has an unfenced backyard swimming pool. The homeowner knows that neighborhood children frequently play in the alley and has previously chased several away from climbing the fence. The ladder is left leaning against the pool. A six-year-old trespasses, climbs the ladder, falls into the pool, and drowns. The child’s parents sue the homeowner. Result?

Answer:
Although the child was a trespasser, the attractive nuisance doctrine likely applies. The pool is an artificial condition, the homeowner knew children were likely to trespass, the condition posed a serious risk of harm, and young children may not appreciate the danger. The burden of eliminating the danger (for example, fencing the pool and removing the ladder) is small compared to the risk. The homeowner owed a duty of reasonable care to protect child trespassers from this condition and may be liable for negligence.

Worked Example 1.6

An employer hires a delivery driver without checking his driving record. The driver has multiple prior convictions for drunk driving. While on a delivery, the driver—again intoxicated—hits a pedestrian. The pedestrian sues the driver and the employer. On what theory can the employer be liable beyond respondeat superior?

Answer:
In addition to vicarious liability, the employer can be directly liable under negligent hiring or negligent retention. The employer had a duty to use reasonable care in selecting and retaining employees whose job (driving) creates a risk of physical harm to others. Failing to conduct even a basic check that would have revealed the driver’s dangerous history can be found unreasonable, creating a duty and breach independent of the driver’s negligence.

Worked Example 1.7

A mother and her child are waiting at a bus stop. A bus negligently jumps the curb, missing both by inches. Neither is physically struck, but the mother develops severe emotional distress and physical symptoms (insomnia, ulcers). The child, who is uninjured and shows no physical symptoms, also sues for emotional distress. The jurisdiction follows the zone-of-danger NIED rule requiring physical manifestations. Results?

Answer:
Both mother and child were in the zone of danger, as they were at risk of physical impact. The mother suffered serious emotional distress plus physical manifestations, so the bus company owed her a duty under zone-of-danger NIED and may be liable. The child, however, suffered only emotional upset without physical symptoms. Under the majority rule requiring physical manifestations, the bus company owed no NIED duty to the child (absent a different bystander rule stated in the question), so the child’s claim fails at the duty element.

Worked Example 1.8

A psychiatrist learns that a patient has made a credible, specific threat to kill a named coworker. The psychiatrist does nothing. The patient later carries out the threat. The coworker’s estate sues the psychiatrist. Is there a duty?

Answer:
Many jurisdictions, following the Tarasoff line of cases, impose a limited duty on mental health professionals to use reasonable care to protect identifiable potential victims when a patient presents a serious danger of violence. Reasonable care may include warning the victim, notifying law enforcement, or taking steps to detain or treat the patient, depending on the circumstances and statutory framework. On the MBE, if the fact pattern emphasizes a specific, credible threat to an identifiable person, the better answer is usually that a duty exists to take reasonable protective measures.

Exam-Focused Duty Analysis

On MBE negligence questions:

Identify the plaintiff and the conduct.
- Who is claiming injury?
- What specific act or omission by the defendant is alleged to be negligent?
Ask: is this plaintiff foreseeable?
- Consider distance, context, and whether the harm flows in a direct, common-sense way from the conduct.
- Was the plaintiff within the zone of danger or within a class of persons specially protected?
Check for special duty situations.
- Rescuers (danger invites rescue)
- Negligent entrustment / negligent hiring
- Common carriers, innkeepers
- Landowners and entrant status (trespasser, licensee, invitee, child trespasser)
- Custodial and protective relationships (parent–child, employer–employee, jailer–prisoner, school–student, mental health professional–patient)
- Contractual or statutory duties
Watch for “no duty” public policy limits.
- No general duty to rescue
- No duty to control third parties absent special relationship
- No duty for purely economic loss (economic loss rule)
- Limits on liability for third-party criminal acts (unless special circumstances)
Only after duty is clear move on to breach, causation, and damages.

Exam-writing tip: if an answer choice correctly states a duty rule that outright resolves the claim (e.g., “the defendant owed no duty to protect against purely economic loss”), that choice is often better than one that debates breach or causation.

Exam Warning

Many examinees assume that duty is owed to anyone who is harmed. This is incorrect. Always:

Distinguish between foreseeability of injury and foreseeability of this plaintiff.
Ask whether the plaintiff was in the zone of danger, or within a recognized special duty category.
Be alert to landowner questions that quietly shift a plaintiff from invitee to trespasser by having them enter a clearly restricted area.
In criminal-act fact patterns, ask whether a special relationship or prior similar incidents are present before imposing a duty to protect.

Revision Tip

When revising duty issues, practice writing a one-sentence answer to each of these:

“To whom does the defendant owe a duty here, and why?”
“Is this plaintiff foreseeable under Cardozo’s approach?”
“Does any special duty or public policy limit change the result?”

Doing this quickly for many fact patterns trains you to spot duty issues rapidly on the MBE and to reject attractive but incorrect answer choices that ignore duty altogether.

Key Point Checklist

This article has covered the following key knowledge points:

Duty of care in negligence is generally owed only to foreseeable plaintiffs within the zone of danger (Cardozo rule).
Unforeseeable plaintiffs—those outside the scope of risk created by the defendant’s conduct—are owed no duty under the majority approach.
The rescuer doctrine treats rescuers as foreseeable plaintiffs; a negligent actor owes them a duty, subject to limits like the firefighter’s rule.
NIED duty is commonly limited to plaintiffs in the zone of danger with physical manifestations of distress, and to qualified close bystanders who contemporaneously perceive injury to a loved one.
There is no general duty to rescue, but affirmative duties to act arise when the defendant creates a risk, has a special relationship, voluntarily undertakes aid, or has statutory or contractual obligations.
Landowner duties vary with entrant status (trespasser, licensee, invitee) under traditional rules; invitees are owed the broadest duty of reasonable care, and child trespassers may be protected by the attractive nuisance doctrine.
Common carriers and innkeepers owe a heightened duty of care to passengers and guests, including some duty to protect against foreseeable harms.
Negligent entrustment and negligent hiring impose duties based on the defendant’s control over dangerous instrumentalities and risk-creating employees.
Negligence per se uses statutory standards to supply duty and breach when the statute protects the plaintiff and the type of harm, and the violation is unexcused.
Public policy may limit duty where harm arises from third-party criminal acts, purely economic loss, or where no special relationship exists.
On MBE questions, always analyze duty first: identify the plaintiff’s status, foreseeability, and any special duty or policy limitation before moving to breach and causation.

Key Terms and Concepts

Duty of Care
Foreseeability
Zone of Danger
Unforeseeable Plaintiff
Rescuer Doctrine
Negligent Infliction of Emotional Distress (NIED)
Affirmative Duty to Act
Landowner Duties
Trespasser
Licensee
Invitee
Attractive Nuisance Doctrine
Common Carrier
Innkeeper
Statutory Duty
Negligence Per Se
Economic Loss Rule
Negligent Entrustment
Negligent Hiring

Negligence - The duty question