Black-letter propositions
- 01
A person who creates danger, begins rescue, or has a special relationship must use reasonable care within the duty.
- 02
Rescuers are foreseeable and may recover unless conduct is wanton; professional-rescuer limits vary.
- 03
Land possessors owe duties based on entrant status under traditional law or reasonable care under modern unitary law, with special rules for known trespassers and attractive nuisances.
- 04
Negligent infliction of emotional distress commonly requires zone of danger or close-relative bystander elements, though mishandling remains and erroneous death messages can be exceptions.
- 05
Duties to control or warn about third persons generally require a special relationship and foreseeable victim or risk.
Use this attack sequence under time
Frame the issue
Start with general no-duty rule for omission.
Resolve the next checkpoint
Identify creation, undertaking, relationship, or premises source.
Resolve the next checkpoint
Classify entrant and jurisdictional approach.
Finish the conclusion
For emotional harm, choose direct-risk, bystander, or special-case route.
Common wrong turns
- A rescuer's contributory fault is not assumed from entering danger.
- A landowner is not an insurer of entrant safety.
- Foreseeable crime alone may not create a duty without control or relationship.
Worked example
A shopkeeper begins helping an unconscious customer, then abandons her in a more dangerous position.
Even if no initial duty existed, the undertaking creates a duty of reasonable care and liability for increasing risk or inducing reliance.
Practice this topic
Omissions and land entrants
Cornell says an omission is negligent only when the person had a duty to act, for example a duty to help because of the person's own previous conduct. It lists relationships that create duties, such as innkeeper and guest, landowner and lessee, and doctor and patient. On land, Cornell defines an invitee as a person who enters with the owner's express or implied invitation, such as a customer in a store, to whom the owner typically owes reasonable care to keep the premises reasonably safe and to warn of known dangers that are not open and obvious.
A licensee has limited permission to be on the land. Cornell describes the attractive-nuisance doctrine as imposing a duty to treat trespassing children like invitees when a dangerous condition particularly attracts them, requiring reasonable care to eliminate dangers or give adequate warning.
Emotional harm
Cornell describes negligent infliction of emotional distress as distress caused by negligent action, with states differing greatly. Most states allow claims when the defendant's actions were reasonably foreseeable to cause the distress. Some states require that the plaintiff be in a zone of danger, nearly missing physical harm and fearing it.
Because the rules vary, state which approach the facts point to before you apply it, and compare the negligent claim with the intentional tort, which requires outrageous conduct.
Frequently asked questions
What is the controlling rule for omissions, rescue, relationships, land entrants, and emotional harm?+
Affirmative duties arise from risk creation, undertaking, relationship, control, premises status, or a recognized emotional-harm category.
How should I analyze omissions, rescue, relationships, land entrants, and emotional harm on the bar exam?+
Start with general no-duty rule for omission. Identify creation, undertaking, relationship, or premises source. Classify entrant and jurisdictional approach.
When is an omission negligent?+
Only when the person had a duty to act, such as a duty to help because of the person's own previous conduct, according to Cornell.
What duty does a landowner owe an invitee?+
Typically reasonable care to keep the premises in a reasonably safe condition and to warn of known dangerous conditions that are not open and obvious.
What is the attractive-nuisance doctrine?+
A rule imposing a duty to treat trespassing children like invitees when a dangerous condition on the land particularly attracts them.
What is negligent infliction of emotional distress?+
Emotional distress caused by negligent action, with states differing on when a claim is allowed, according to Cornell.
What is the zone of danger approach?+
Some states allow a claim only when the plaintiff nearly missed physical harm and feared it, per Cornell's summary.