Spokane Legal Advice – Quiroga Law Office, PLLC

No Duty means No Negligence

Spokane legal advice: Remember, there is no general duty to assist others, meaning that generally there is no duty to act to assist others who need assistance. A failure to assist is not a breach of the duty of reasonable care and, therefore, is not negligent.

Example– A doctor is walking down the street and witnesses a car accident. The doctor does not have a duty to assist any injured parties. Failure of the doctor to assist is not negligent behavior.

Comment– Although there is no duty to assist others, once an individual begins to assist, they may become liable if they fail to follow through. Failure to follow through in assisting is known as a “failed rescue.”

The duty to follow through with a rescue arises from the idea that other would-be-rescuers may not attempt a rescue if they see someone else attempt the rescue first. Note that a rescuer may abort the rescue if he finds his own life in peril. Additionally, some states have “Good Samaritan” statutes that protect medical and rescue personnel from liability in the event that injury to the person being rescued does occur.

Exceptions– family members owe other members of their family a “duty of rescue” if the assistance does not endanger the life of the rescuing family member. Similarly, operators of public transportation, such as airlines, owe customers a duty of rescue. The reason for holding operators of public transportation liable is that they have taken their customers into their care and have great control over the customer’s surroundings and well-being. (Operators of public transportation are commonly referred to as “common carriers”.)

Breach- a breach of the duty of reasonable care results whenever a person fails to provide reasonable care to a foreseeable plaintiff.

Statutes- generally, a finding that a defendant has breached the duty of reasonable care is independent of whether the defendant’s activity violated a statute. Good Spokane legal advice is that to find someone negligent, you must have a duty and breach (also causation and damages).

Example– Michelle, the owner of Fantastic Michelle’s beauty parlor, hangs a sign in front of her building. The sign is 6 feet by 8 feet in size. A city ordinance prohibits the use of signs greater than 4 feet by 6 feet. The city passed the ordinance to prevent the city from having large and unsightly signs in its historic district.

One day Hector is walking down the street and the sign falls and injures him. After seeking Spokane legal advice, Hector sues Michelle for negligence. The fact that the sign was larger than allowed by law is not a factor in determining negligence because the purpose of the ordinance was not safety, but aesthetics. Instead, a determination of negligence will be based on factors such as whether the sign was securely installed.

Exceptions– some jurisdictions provide that a plaintiff has breached a duty of reasonable care if:

A. the defendant’s injurious activities violated a statute, and
B. the plaintiff was a member of a class that the statute was intended to protect, and
C. the injury was of a type that the statute was intended to prevent.

Example– A statute prohibits the storing of toxic chemicals in residential neighborhoods. John stores toxic chemicals in his garage. One day, one of the storage containers ruptures causing lung injury to John’s neighbor Quincy.

A jurisdiction that allows the use of statutes to determine whether a duty has been breached will find that John has breached the duty of care to Quincy because the statute is intended to protect individuals in residential neighborhoods from injuries that would occur if the chemicals were spilled.

By contrast, if the storage container rolled onto Quincy’s foot, the statute could not be used to establish that a breach of the duty of reasonable care had occurred because the injury would not be of a type that the statute was intended to prevent. While John could be found to have breached his duty of reasonable care as a result of the rolling container, the statute could not be used to establish that a breach occurred.

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