Study guide
15.2 Affirmative Duties to Act & Special Relationships
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
15.2 Affirmative Duties to Act & Special Relationships
Key Takeaways Explain This Topic AI
The law distinguishes misfeasance, actively creating a risk, from nonfeasance, failing to confer a benefit, and imposes no general duty to rescue in cases of pure nonfeasance.
A duty to act arises from a special relationship such as common carrier and passenger, innkeeper and guest, employer and employee, or custodian and ward.
A defendant who creates the peril, even innocently, has a duty to render reasonable assistance.
A person who voluntarily begins a rescue must proceed with reasonable care and may not leave the victim worse off or in a more isolated position, though Good Samaritan statutes shield gratuitous rescuers from ordinary negligence liability but not from gross negligence or reckless conduct.
A therapist or similar professional who determines that a patient poses a serious danger of violence owes a duty to warn or protect a reasonably identifiable victim.
Last updated: September 2026
- Affirmative Duties to Act & Special Relationships
- 1. The No-Duty-to-Rescue Rule: Misfeasance vs. Nonfeasance
A paramount principle of Anglo-American tort law is the sharp doctrinal divide between misfeasance (active misconduct that creates a positive risk of harm) and nonfeasance (passive inaction or failure to intervene to protect another from peril): Defendant's Conduct
- ├── Misfeasance (Active Conduct creating or increasing risk) ──▶ Common Law Duty of Reasonable Care
- └── Nonfeasance (Passive Inaction / Failure to protect) ──▶ NO Common Law Duty (Unless an Exception Applies)
- The General Common-Law Rule
At common law, a person owes no legal duty to rescue, assist, warn, or aid a stranger in peril , even if:
The imperiled person faces imminent death or grievous bodily injury;
The actor possesses the immediate physical ability to effectuate a rescue with zero risk, effort, or expense to themselves; and
The actor stands by and watches the victim perish ( Buch v. Amory Manufacturing Co. ; Yania v. Bigan ).
Illustrative Classic Scenario: A champion Olympic swimmer walks past an unfenced residential garden pond and notices an unattended two-year-old infant thrashing face-down in two feet of water. The swimmer can reach into the water and pull the child out in two seconds without wetting anything higher than their wrist. The swimmer sits on a bench and watches the infant drown. Under the common law, the swimmer is guilty of no tort. The law enforces legal duties, not moral conscience. Because the swimmer did not create the peril and shared no special relationship with the child, nonfeasance creates no tort liability.
2. The Five Recognized Exceptions Imposing an Affirmative Duty to Act
The harsh common-law nonfeasance rule is tempered by five firmly established categorical exceptions where the law imposes an affirmative legal obligation to take reasonable affirmative steps to protect or rescue another: Affirmative Duty Exceptions
- ├── 1. Special Legal Relationship (Carrier, Innkeeper, Invitor, Custodian, School)
- ├── 2. Voluntary Assumption of Duty (Commencing rescue requires reasonable care; no abandonment)
- ├── 3. Defendant Created the Peril (Tortious or innocent creation of danger triggers duty to mitigate)
- ├── 4. Contractual Obligation (Express or implied agreement to provide safety/life-saving services)
- └── 5. Control of Dangerous Third Persons (Tarasoff duty to warn identifiable victim of known threat)
- Exception 1: Special Legal Relationships
When a recognized formal relationship exists between the parties, the defendant owes an affirmative duty of care to protect the plaintiff against unreasonable risks of harm and render emergency aid:
Common Carriers & Passengers: Airlines, passenger trains, municipal buses, and ferries owe an affirmative duty to assist and protect their passengers against foreseeable dangers, assaults, and medical crises.
Innkeepers & Guests: Hotels, motels, and commercial lodgings must maintain safe premises and render emergency aid to paying guests.
Business Invitors & Invitees: Commercial proprietors (retail stores, restaurants, amusement parks) owe an affirmative duty to protect patrons on their premises from unreasonable dangers and summon medical aid upon discovering an injured customer.
Custodians & Wards: Jailers and prisoners, hospitals and patients, mental health institutions and committed individuals, daycares and young children.
Schools & Minor Pupils: School districts owe an affirmative duty to supervise and protect enrolled children during school hours and school-sponsored activities.
Exception 2: Voluntary Assumption of Duty (The Good Samaritan Dilemma)
No one is required to play the Good Samaritan, but one who voluntarily undertakes to render aid incurs a legal duty to act with reasonable care :
The Duty of Due Care in Rescue: Once an actor voluntarily begins an emergency rescue or medical intervention, the actor must exercise reasonable prudence under the circumstances.
Prohibition on Abandonment / Leaving in a Worse Position: A gratuitous rescuer cannot abandon the rescue if doing so leaves the imperiled victim in a worse position than before the rescue commenced, or if the rescuer's initial intervention induced other prospective rescuers to turn away in reliance on the defendant's efforts ( Restatement (Second) of Torts § 324 ).
Statutory Note on Good Samaritan Statutes: To encourage medical professionals and citizens to assist roadside accident victims, modern California statutory law (Cal. Health & Safety Code § 1799.102) immunizes gratuitous rescuers rendering emergency assistance at the scene of an emergency from ordinary negligence liability, holding them accountable only for gross negligence or willful/wanton misconduct. However, on the general common law tested on the FYLSE, a gratuitous rescuer remains bound to reasonable care unless a statute is explicitly cited in the prompt.
Exception 3: Defendant Created the Peril
If an actor's prior conduct—whether culpably negligent or entirely non-negligent and innocent —causes an accident or creates a dangerous condition that threatens injury to another, the actor incurs an immediate affirmative duty to take reasonable precautions to prevent further injury or warn prospective victims.
Innocent Creation of Hazard: A driver's truck suffers a sudden, unavoidable mechanical blowout without any negligence. The truck spins across the highway and deposits a massive boulder onto the roadway. Even though the driver committed zero negligence in causing the boulder to land on the road, the driver's affirmative conduct created the peril. The driver owes a legal duty to exercise reasonable care to warn oncoming traffic (e.g., setting up road flares or calling highway patrol) or remove the obstruction. Failing to do so constitutes actionable negligence.
Exception 4: Contractual Duty
An affirmative duty to act, monitor, or rescue may be created by private contract. A commercial lifeguard hired by a municipal swimming facility, a private security guard contracted to patrol an office plaza, or an in-home certified nursing assistant who contracts to care for an elderly patient all owe affirmative legal duties to intervene, rescue, or protect within the scope of their contractual undertakings.
Exception 5: Duty to Control Third Persons & The Tarasoff Doctrine
Generally, an actor has no duty to control the conduct of a third person to prevent them from causing physical harm to another. However, an affirmative duty to control a third person or warn potential victims arises when:
A special relationship exists between the actor and the third person (e.g., parent and minor child, master and servant, mental healthcare provider and psychiatric patient); AND
The actor knows or has reason to know of the necessity and physical ability to control the third person's dangerous actions.
The Landmark Tarasoff Rule
In Tarasoff v. Regents of University of California (Cal. 1976), a patient disclosed to his university psychotherapist his specific intention to murder an identifiable young woman, Tatiana Tarasoff. The therapist notified campus police, who briefly detained and released the patient, but neither the therapist nor the university warned Tatiana or her family. The patient subsequently murdered Tatiana.
The Rule of Law: When a psychotherapist or medical professional determines, or pursuant to the standards of their profession reasonably should determine, that a patient presents a serious danger of violence to a reasonably identifiable third-party victim , the therapist bears an affirmative legal duty to use reasonable care to protect the intended victim (which may include warning the victim, notifying law enforcement, or taking steps toward involuntary psychiatric hospitalization).
Limitation: The duty does not extend to vague, non-specific threats against the general public at large; the potential victim must be identifiable upon reasonable inquiry.
3. Master Comparison Matrix: Affirmative Duty Exceptions
Affirmative Duty Category Legal Source & Triggering Relationship Mandatory Standard of Conduct Landmark / Doctrinal Authority
General Bystander Pure nonfeasance; no prior contact or connection. No duty to act, warn, or rescue whatsoever. Buch v. Amory ; Yania v. Bigan
Foreseeable Plaintiff Defendant's affirmative conduct creates risk in physical space. Reasonable care to all within foreseeable zone of danger. Palsgraf (Cardozo majority view)
Emergency Rescuer Defendant imperils self or third party ("danger invites rescue"). Duty of reasonable care owed to rescuer; liable for rescuer injuries. Wagner v. International Ry. Co.
Special Relationship Custody, dependence, or commercial profit (carrier, hotel, school). Affirmative obligation to protect and provide emergency aid. Restatement (Second) of Torts § 314A
Voluntary Undertaking Actor begins rendering aid or rescue to an imperiled stranger. Must act with reasonable care; cannot abandon if leaving victim worse off. Restatement (Second) of Torts § 324
Creation of Peril Actor's act (negligent or innocent) placed victim or roadway in hazard. Affirmative duty to take reasonable precautions or summon aid. Restatement (Second) of Torts § 321
Contractual Undertaking Express or implied agreement for safety/monitoring services. Affirmative duty to perform contracted safety/rescue functions. Contractual tort duties (e.g., lifeguards)
Tarasoff Warning Psychotherapist-patient relationship + specific identifiable target. Affirmative duty to exercise reasonable care to protect intended victim. Tarasoff v. Regents of Univ. of Cal.
- 4. Practical Exam Hypotheticals & FYLSE Traps
- Trap Scenario 1: The Non-Negligent Driver Who Leaves the Scene
Hypothetical: David is driving his sedan prudently at 25 mph down a suburban street when a loose dog darts into the road. David swerves carefully to avoid the dog, but his tire hits a patch of black ice, causing the vehicle to slide harmlessly onto the sidewalk, knocking down a tall wooden streetlamp. David inspects his vehicle, sees no damage, and drives away without touching the lamp. Two hours later, in the dark, Peter, a jogger, trips over the fallen lamp and suffers a fractured knee. Peter sues David in negligence.
Analysis: David did not drive negligently; his swerve and slide were non-negligent responses to an animal and black ice. However, David's affirmative conduct created the peril (the fallen lamp across a public sidewalk). Under the common law, one whose prior conduct causes a dangerous obstruction has an affirmative duty to exercise reasonable care to remove the hazard or alert authorities. David breached this affirmative duty, and Peter will prevail.