Reaffirming The Special Relationship Doctrine

Chicago Daily Law Bulletin February 27, 2008

By Colin H. Dunn

Every first-year law student learns that “duty” is one of the four essential elements of a cause of action for simple negligence.  Memorizing those elements is easy.  The tougher questions are does a duty exist and, if so, what does that duty entail.  Before those questions can be answered, however, one must determine what is even meant by the term “duty”.

As our supreme court recently noted, the concept of duty “is very involved, complex, and indeed nebulous.”  Marshall v. Burger King, 222 Ill.2d422, 435 (2006) (citations omitted).  Much of the confusions over what it means to “owe a duty” stems from the variety of different ways that term is used.  Marshall, 222 Ill.2d at 436.  For instance, sometimes duty is used to refer to a general standard or obligation.  At other times, duty is used as “a conclusion about whether the defendant’s particular act or omission should be actionable, irrespective of any general standard.” 1 D. Dobbs, Torts § 226, at 577 (2002).  In other words, to declare that “my client owed no duty” is, in reality, an argument that no breach of the duty that was owed occurred.  In fact, commentators have described four different senses in which duty is used:  duty as obligation, duty as nexus between breach and duty, duty as breach as a matter of law, and duty as exemption from the operation of negligence law.  J. Goldberg & B. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 698-723 (2001).  When determining whether a duty exists for purposes of stating a claim for negligence, it is the “obligation to another” sense or, as our supreme court has termed it, “’duty’ in its most basic or ‘primary’ sense”  (see Iseberg v. Gross, 2007 WL 2729325, at 4 (2007)), that is the relevant focus.

That begs the question, however, of how the existence of a duty is determined.  Obviously, whether a duty exists “is not discoverable fact of nature.”  1 D. Dobbs, Torts § 226, at 582 (2002).  While a duty can be imposed in numerous ways, including by statute, by contract, it can also arise through common law principles.  See Iseberg, 2007 WL 27293254.  When a party relies upon common law principles as the basis for the duty element of her negligence claim, determining whether a duty should be imposed involves considerations of public policy.  See Marshall, 222 Ill.2d at 436.

Historically, those policy considerations have been embodied in four “traditional” factors that courts rely upon to make that determination:  (1) reasonable foreseeability of the injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant.  See e.g., Lance v. Senior, 36 Ill.2d 516, 518 (1967).  But the touchstone of this analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.  Marshall, 222 Ill.2d at 436 (citations Omitted).

As the common law has plodded along, four “special relationships” have been recognized:  common carrier-passenger; innkeeper-guest; custodian-ward; and business invitor-invitee.  Restatement (Second) of Torts §314A (1965).  Employer-employee, school-student, and landlord-tenant are three relationships that either have or will be added to that list.  See Restatement (Second) of Torts § 314A, comment b (1965); Iseberg, 2007 WL 2729325, at 4, n4, citing Restatement (Third) of Torts:  Liability for Physical Harm § 40, Proposed Final Draft No. 1 (April 6, 2005).

The existence of a special relationship imposes duties upon a party where normally the law would not, such as protecting another from criminal attack by third party or to render aid.  See Restatement (Second) of Torts § 314A, Comment d (1965) (nothing that the duty to take reasonably action to protect the latter against unreasonable risk of physical harm extends to risk arising out of the actor’s own conduct, the condition of his land or chattels, forces of nature or animals, acts of third persons be they innocent, negligent, intentional, or even criminal, as well as risks arising from pure accident, or from the negligence of the plaintiff himself, as where a passenger is about to fall off a train or has fallen; the duty to give aid extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third persons, or to the negligence of the plaintiff himself, as where a passenger has injured himself by clumsily bumping his head against a door).

One unanswered question has been what role the “traditional duty factors” play in the determination of whether a duty of obligation exists where either (1) the parties share one of these special relationships and one party seeks to avoid potential liability based upon that duty or (2) a party attempts to impose a duty that exists between parties who share a special relationship, i.e., to protect from criminal attack or to render aid, in the absence of one of those relationships.  In other words, can those traditional factors be used to either trump a special relationship duty or to impose such a duty without the existence of a special relationship?  Recently, our supreme court in Marshall and Iseberg attempted to answer that question.  In doing so, the court re-affirmed Illinois’ adherence to the special relationship doctrine and the importance these relationships have in determining the existence of a duty.

In Marshall, a restaurant patron was killed when an out-of-control motorist hit the sidewalk adjacent to the restaurant, became airborne, penetrated the brick half-wall and windows surrounding the restaurant’s entrance, and struck the patron who was eating inside.  The plaintiff sued the franchisor, claiming that it failed to prevent the motorist from crashing into the restaurant.  Relying upon the traditional duty factors, the franchisor argued it owed no duty to the decedent to protect him from the “highly extraordinary” and “tragically bizarre” accident.

Our supreme court rejected the franchisor’s no-duty argument.  Instead, the court found that “the special relationship between a business invitor and invitee does indeed give rise to a duty of reasonable care that is applicable to this case, and the factors relied on by defendants do not support the creation of an exemption from that duty.”  See Marshall, 222 Ill.2d at 437.  The court looked to the traditional factors only to determine whether to create an “exemption” to that duty, but found that the franchisor had provided it with no consideration to find that, “as a matter of law, landholders who open their land to the public for business purposes have no duty to protect invitees against out-of-control drivers.”  Marshall, 222 Ill.2d at 442.  Explaining the policy rationale behind its finding, the court state:  “Rules declaring that no duty exists can easily be made to broad or too narrow.  Because they are rules of law, not decision about particular cases, they cover all cases in the category to which they are addressed.  They are expressions of ‘global’ policy rather than evaluations of specific facts of the case.  Consequently, no-duty rules should be invoked only when all cases they cover fall substantially within the policy that frees the defendant of liability.”  Marshall, 222 Ill.2d at 441-42, quoting 1 D. Dobbs, Torts § 227, at 579 (2001).  Thus, because the court could not say that all business invitors had no duty to protect their invitees from out-of-control motorists, it rejected the franchisor’s “no-duty-of-the-bizarre-facts-of-this-case” argument. 

In Iseberg, an estranged business partner who had lost his entire investment shot the plaintiff.  The Plaintiff sued his other partner after learning that, before the attack, the shooter had told that partner that he wanted to kill the plaintiff.  Despite the fact that no “special relationship” existed between him and his partner, the plaintiff claimed that his partner had a duty to warn him of those threats, inter alia, based upon the traditional duty factors.

The Supreme Court rejected that argument.  In so doing, the court recognized its “long history of adherence to the rule that private persons owe no duty to act affirmatively to protect others from criminal attack by third parties absent a ‘special relationship.’”  Iseberg, 2007 WL 2739325 8.  citing Marshall, the court disagreed with the plaintiff’s contention that the special relationship doctrine had been eroded in Illinois.  Iseberg, 2007 WL 2739325 10.  the court also declined to accept the plaintiff’s invitation to abandon adherence to that doctrine, finding that the pull of state decisis was too strong, especially where the no-affirmative-duty-to-act rule has been retained in every jurisdiction and “abandonment of the no-duty rule would create a number of practical difficulties – defining the parameters of an affirmative obligation and enforcement, just to name tow.”  Iseberg, 2007 WL 2739325 11.

In both Marshall and Iseberg, the court rejected any reliance upon the traditional duty factors to either trump the duties owed by virtue of a special relationship or to impose those duties in the absence of one of those relationships.  Simply put, “the ‘special relationship’ doctrine stand[s] as the law of this state.”  Iseberg, 2007 WL 2739325 12.

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