all right moving right along here to the uh second part of the torz video series this is the most important part uh negligence is because it uh is about I think 50% of give or take of all the torz questions on the exam compared to Parts one three and four which are I guess about 177% each this is uh the main focus of your study should be on negligence as a result uh so let's start with a bit of a refresher the four elements of a Tor this should bring you back to day one of law school I'm not sure if that's a day you want to relive or not but nonetheless here we go there are four elements if you want to be successful in advancing a tort and they are one duty two breach of Duty three cause ation and four damages what we're looking at here is part one of those elements the duty the duty question so the plaintiff must be owed a duty by defendant in order for there to be tort what is a duty uh and uh I'm obviously thinking of Family Guy and all the jokes you could think of when I said what is a duty but what we're talking about here is a legal Duty do uty and that is when you have to do something and if you don't do it you can be legally responsible an example in contracts if you enter a contract you make a promise to do something you have a duty to fulfill that promise if you don't you can go to court for breach of contract in torz there is also a Duty and and that is a duty to take due precautions to minimize the harm to foreseeable victims what does that mean it basically means you need to be a cautious and careful person and that caution and that care has to uh take into account people that could potentially be harmed by your actions namely foreseeable victims in other words the defendant can only be asked to be cautious to things that he could foresee um the example that comes to mind is the Paul's graph case again we're going back way back to first days of law school probably and that if I need to remind you is the famous case where two bozos that work for a railroad company push some guy on a moving up onto a moving train and he's an even bigger Bozo because he has fireworks or something like that in his uh suitcase and somehow I have no idea how this would happen unless they were lit but they explode and that that happened because these guys pushed him onto the train he dropped his suitcase it fell explodes people run things knock over and lo and behold poor poor Mrs Paul's graph is standing down on the platform a ways away but she gets they call them scales I don't know exactly what hit her but something hits her um it's is a series of steps between the pushing of this guy onto the train and the injury to miss Paul's graph the you know it's usually taught uh in terms of proximate cause but interesting way in looking at that case is Through The Eyes Of Duty and understanding this will help you think of Duty when you are reading a MBE question or a fact pattern or anything on the bar exam so the idea here is the question here is whether those workers from the railroad company owed a duty to miss Pauls graph well I said that you owe a duty to everyone to be safe to take precautions fine but they in this instance they were pushing somebody onto a train in doing that Miss Paul's graph all the way down the track down the platform was not a foreseeable victim when they thought to themselves should we push this guy onto the train okay well there's obviously some danger we might injure this guy I don't know but they were not thinking of Miss Pauls graph and nor should they have been she was not foreseeable there was no way for them to think that pushing someone onto a train could have hurt her they had no idea there was fireworks in the in the being held by the passenger so since there was no duty to miss Paul's graph and what they were doing there was no Duty that could have been breached and since there was no Duty or breach of Duty there was no tort and without a Tor Miss Paul's Graff couldn't get damages from the railroad company uh so to think of that it's not simply that you have to just be a cautious person it's that your the measures of caution that you take need to take into account some foreseeable victim so you look at the plaintiff was he a or she a foreseeable victim when the defendant was taking precautions or not taking precautions uh so that is the only extent of Duty is it it is to foreseeable victims that of course is not always the easiest question to answer uh and I don't think this should come up that much but if if it does it's this idea of whether or not when the defendant was deciding to be careful or not could they have thought of the plaintiff could the plaintiff have been somebody in mind when they were deciding to be careful uh another aspect of the duty question here is the idea of a failure to act this happens this is rare uh I don't know H how often or if it would be appear on a question that easily but for instance a if a defendant is driving a car he has set that car in motion and if there's a plaintiff ahead of him he has a duty to step on the gas or excuse better he better not he has a duty to step on The Brak that way he doesn't uh hit the plaintiff so it's a failure to act if he doesn't step on the break that is the the basis of the Tor so you're the the duty can be breached by simply failing to act or the duty can be breached by an act by you know uh if you know if he turned his car in into the direction of the plaintiff that would be breaching a duty by an action uh another aspect of failure to to act is if there's some special relationship or status common carrier or inkeeper has a duty to protect people under their care this is a bit outdated this goes back to like I don't even know when like ancient not I'm not that ancient but like you know I'm thinking of Abraham Lincoln going to some in when he's traveling and that that inkeeper has a duty to protect the guests like that that I don't think if I go to the Hilton the the manager has some I mean well they do I should say they do but it is just it's just different today but nonetheless uh common carriers or inke keepers have this special Duty that if to protect people under their care if there's some storm or a a hurricane they you're not just on your own it's the hotel that has to uh protect you so if they fail to act if there's a hurricane and I'm in the Bahamas at staying at Club Med and the the hotel doesn't do anything to try to protect me well then they're uh liable for failing to act when they should have another aspect of Duty here is if somebody is In Harm's Way somebody's uh so there is a duty to act if the defendant is the one who caused the plaintiff to be put In Harm's Way nor normally there's no general duty to rescue somebody if I am taking a walk and I look and I see somebody's hanging off a branch on a cliff and they're screaming for me to help them uh I don't have to help them legally it would be terrible if I didn't but in terms of tort and what the law will punish that it's just not uh it's just not part of tor the only instance when you do have to rescue somebody is if you are the one that put them In Harm's Way if the defendant caused plaintiff put In Harm's Way if the defendant set a trap the plaintiff falls down some pit and he's at the bottom of the pit the defendant has a duty to rescue that plaintiff so if the plaintiff starves to death because he's at the bottom of a pit it's the defendant's fault he had to rescue him whereas if I walk by the pit and I see the the plaintiff it's not my fault uh and here is another topic and this is on the official outline that's why I mention it here but it's not that common is the duty to control the actions of third parties uh so obviously you have to control yourself when it comes to being a cautious person and sometimes you have to affirmatively rescue someone if you were the one who caused the plaintiff to be put In Harm's Way But Additionally you might have a duty to control control the actions of someone else the the only instance when that really happens is when there's some special relationship or status when you have some legal duty to protect somebody else it goes back again to these uh common carrier inke Keepers boy they have a lot on their plate because they have to protect their guests and landlords I don't know if there are many landlords who go around protecting their uh tenants but none nonetheless it is legally so uh an example would be a common carrier in keeper they need to and same thing with the landlord they need to take precautions to prevent criminals from accessing areas where guests or tenants might be staying and that might include putting up camera lighting uh things of that nature so you're you're controlling the actions of third Parties by preventing them from coming and if those third parties do uh harm your tenants or guests you are partially responsible assuming that you're a common carrier in keeper or landlord enough about the duty question it's not the hardest thing in the world everybody just has to be uh cautious take due care and uh that's pretty much it as long as the victim is foreseeable you have a duty