Special Relationship Creating Duty Of Care On American Tort

Special relationship is a nonfiduciary relationship having an element of trust, arising especially when one person trusts another to exercise a reasonable degree of care and the other knows or ought to know about the reliance. If there is special relationship between the defendant and the plaintiff, the defendant owes a duty of care to the plaintiff.This article is focused on typical special relationships and special relationships creating duty of care to third party. Of all special relationships the degree of duty of care is distinctive. So the analyses of special relationships will be helpful to judge whether the defendant breaches his duty of care. Tort law is very complicated which is base on cases, not statutes. So in this article, induction and deduction is applied to generate the basic principle of special relationships and to analyze them on a case-by-case basis in order to advocate utilitarianism of research.This article constitutes five parts.In the first part, the meaning of negligence is clarified. Negligence has three meanings. They are a state of mind, in which it is opposed to intention, careless conduct without reference to any duty being imposed to take care and a tort cause of action. Negligence is often used in the sense of careless conduct. An act is negligent when it is done, not with the desire of producing a particular, but actually producing that result by carelessness or indifference. An act is intentional when it is purposeful and done with either the desire or the object of producing a particular result.In the second part, Duty as a threshold question in every negligence case is emphasized. Because a defendant is not liable, no matter how reckless his conduct, unless he owes a duty to the plaintiff. According to the accepted definition of Restatement Second of Tort, negligence is conduct, which falls below the standard established by law for the protection of others against unreasonable risk of harm. There are four elements of negligence: duty, breach of duty, causation and damages. The determination of duty primarily is a question of law. There are several ways in which the plaintiff can show that the defendant owed her a duty. The most common is when there is a special relationship between defendant and plaintiff.In the third part, typical special relationships are addressed respectively.Possessors of land owe a limited duty of care to frequent trespassers who se only a very limited area of their land. Once a possessor knows that a particular person is trespassing on her property, she owes a duty of reasonable care to that person. A higher duty may be owed to young trespassers under the "attractive nuisance doctrine". The duty a possessor owes to a license is to warn her of any dangerous conditions if the possessor is aware of that condition and should reasonably anticipate that the licensee may not discover it. A possessor owes a higher duty of care to an invitee than he doesto either a licensee or a trespasser. Most importantly, he has a duty to inspect his premises for hidden danger when dealing with invitees. The owner owed the highest duty of care to the invitee and the lowest duty of care to trespasser.A "special relationship," which gives rise to a duty to protect a person's safety, exists between common carriers and their customers. A common carriers is required to use the utmost degree of care, skill and diligence in everything that concerns its passenger' safety. However, the carrier does not guarantee the safety of its passengers. The rationale behind imposing a heightened duty of care on common carriers involves several factors. First, those who travel on common carriers essentially surrender themselves to the carrier's care and custody. Secondly, these patrons waive their freedom of movement and actions while in the custody of a common carrier.An innkeeper, though not generally required to exercise the same degree of care owed by a common carrier to its passengers, owes its guest the duty of using reasonable care in promoting their safety and t...