Unforeseeable plaintiffs and duties to control third parties

Black-letter propositions

1. 01

   Palsgraf holds that the risk reasonably to be perceived defines the duty to be obeyed, so a plaintiff outside the range of apprehension cannot sue for a breach of a duty owed to someone else.

2. 02

   The Andrews dissent in Palsgraf treats duty as owed to the world at large, because everyone must refrain from acts that unreasonably threaten the safety of others, and uses proximate cause to limit liability.

3. 03

   Absent a special relationship, a person owes no duty to control the conduct of another or to warn those the other endangers; the special relationship may be with the dangerous person or with the potential victim.

4. 04

   Under Tarasoff, a therapist who determines, or under the standards of the profession should determine, that a patient presents a serious danger of violence to another must use reasonable care to protect the intended victim, and the steps may include warning the victim, notifying police, or others.

5. 05

   Alcohol-provider liability comes mostly from statute: New York gives an injured person a claim against one who unlawfully sells liquor to an intoxicated person, while California bars claims against most social hosts but preserves claims against adults who knowingly serve a person under 21 at their residence.

6. 06

   Some statutes make a parent answerable for a minor's willful misconduct, usually with a dollar cap; California's imputes the misconduct to the parent with custody and control, jointly and severally, up to $25,000 per tort as adjusted.

Use this attack sequence under time

Common wrong turns

• A general duty to act reasonably does not create a duty to control someone else's conduct.
• That a crime was foreseeable does not by itself supply the relationship that creates a duty to prevent it.
• A statute can create or erase alcohol-provider liability whatever the common law would say.

Worked example

A guard helps a man board a moving train, and a package the man was carrying falls and explodes, injuring a woman standing far away on the platform.

Practice this topic

Duty runs to foreseeable plaintiffs

In Palsgraf v. Long Island Railroad, Chief Judge Cardozo wrote that the plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another. He also wrote that the risk reasonably to be perceived defines the duty to be obeyed, and that risk imports relation, meaning risk to another or others within the range of apprehension.

The dissent reasoned differently. It said everyone owes to the world at large the duty of refraining from acts that may unreasonably threaten the safety of others, and it left the limits of liability to proximate cause. A bar question that turns on this split will usually say which view the jurisdiction follows.

Special relationships and Tarasoff

The California Supreme Court's opinion in Tarasoff v. Regents of the University of California states the general rule that one person owes no duty to control the conduct of another, nor to warn those endangered by that conduct. It then describes the exception. Courts have found a duty where the defendant stands in a special relationship either to the person whose conduct needs to be controlled or to the foreseeable victim, citing sections 315 through 320 of the Restatement (Second) of Torts.

The court held that a therapist who determines, or under the standards of the profession should determine, that a patient presents a serious danger of violence to another incurs an obligation to use reasonable care to protect the intended victim. It added that the steps required depend on the case. The court's phrase for the balance was that the protective privilege ends where the public peril begins.

Alcohol providers and parents

New York General Obligations Law section 11-101 gives a person injured by an intoxicated person a right of action against anyone who, by unlawfully selling liquor to or unlawfully assisting in procuring liquor for that person, caused or contributed to the intoxication. Section 11-100 gives a comparable right for intoxication of a person under 21. California Civil Code section 1714 takes the opposite approach for social hosts: subdivision (c) says no social host who furnishes alcohol may be held legally accountable for the consumer's injuries or for injury to a third person, and subdivision (d) preserves claims against a parent, guardian or other adult who knowingly furnishes alcohol at home to someone known to be under 21.

Parental liability is also statutory in many states. California Civil Code section 1714.1 imputes a minor's willful misconduct to the parent or guardian with custody and control, who is then jointly and severally liable with the minor. The section caps the parent's liability at $25,000 per tort, adjusted by the Judicial Council every two years.

Frequently asked questions