See also Negligence (duty of care) and all its subcategories. In Ashburn v. Anne Arundel County, 306 Md. 617, 627-28, 510 A.2d 1078, 1083 (1986), the court analyzed whether a duty existed: Duty' in negligence has been defined as `an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' Prosser and Keeton [on Torts ] § 53 [ (W. Keeton 5th ed.1984) ]. There is no set formula for this determination. As Dean Prosser noted, `duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' Id. In broad terms, these policies include: `convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, [and] the moral blame attached to the wrongdoer....' Id. As one court suggested, there are a number of variables to be considered in determining if a duty exists to another, such as: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976).

 

Perhaps among these the factor deemed most important is foreseeability. See id. However, `foreseeability' must not be confused with `duty.' The fact that a result may be foreseeable does not itself impose a duty in negligence terms.' [Some alterations in original.] See also Dermer, 357 Md. at 357, 744 A.2d at 54; Rosenblatt, 335 Md. at 76-77, 642 A.2d at 189. With regard to the connection between the harm and the relationship between the parties, the court stated in Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645, 658, 762 A.2d 582, 589 (2000) (quoting Jacques v. First Nat'l Bank, 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986)): '`Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability.''

 

Furthermore, as stated in Almaraz, 329 Md. at 449, 620 A.2d at 333, 'legal scholars have long agreed that the seriousness of potential harm, as well as its probability, contributes to a duty to prevent it.' As emphasized in Bobo v. State, 346 Md. 706, 714-15, 697 A.2d 1371, 1375-76 (1997): 'Two of the relevant factors to consider in determining whether such a duty should be recognized are `the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.' Jacques v. First Nat'l Bank, 307 Md. 527, 534, 515 A.2d 756, 759 (1986).... Such a relationship may be established in a number of ways: (1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.' [Some citations omitted.]  

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. When the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. Even when the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the 'defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others.' McCain, 593 So. 2d at 502. Further factual inquiry risks invasion of the province of the jury. 

The existence of a duty is a question of law. Coln, 966 S.W.2d at 39. To determine whether a particular defendant owes a duty of care to a particular plaintiff, we balance the foreseeability and gravity of the potential harm against the feasibility and availability of alternatives that would have prevented the harm. Id.; Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.1998). 'Although all the balancing considerations are important, the foreseeability prong is paramount because `[f]oreseeability is the test of negligence.'' Biscan v. Brown, 160 S.W.3d 462, 480 (Tenn.2005) (quoting Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.1992)). 

As explained in Lopez v. McDonald's Corp 193 Cal.App.3d at pages 506-507, the question of 'duty' is one of law decided by the court which applies the Rowland analysis of landowner liability of weighing the foreseeability of harm with a non-exhaustive list of other factors and policy considerations to determine whether liability should be restricted under the factual circumstances of the case at hand. Rowland v. Christian, 69 Cal.2d at pp. 112-113. The court must make a general evaluation whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.'

 The question of foreseeability in a 'duty' context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact.' (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 507, fns. omitted.)

Foreseeability is but one factor to be weighed in determining whether a landowner or business establishment owes a duty in particular cases and is an elastic factor within a somewhat flexible concept. (Id. at p. 509.) What is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]' (Id. at p. 509.) The court then balances the foreseeability of harm to the plaintiff with other factors, including 'the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' (Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113; Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467 [213 Cal.Rptr. 213, 698 P.2d 116, 48 A.L.R.4th 601]; Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 505.) 

A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' Prosser, Torts (4th ed), § 53, p 324. The existence of a duty is ordinarily a question of law. However, there are factual circumstances which give rise to a duty. The existence of those facts must be determined by a jury. In Bonin v Gralewicz, 378 Mich 521, 526-527; 146 N.W.2d 647 (1966), the court reversed a directed verdict of no cause of action where the trial court had determined as a matter of law that the proofs were insufficient to establish a duty of care: 'Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise. When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution, and they must be accompanied by an appropriate conditional instruction regarding defendant's duty, conditioned upon the jury's resolution of the fact dispute.' This same rule was stated in Davis v Thornton, 384 Mich 138, 142; 180 N.W.2d 11 (1970). 'The trial judge in this case determined the defendant owed the plaintiff no duty. We believe this conclusion could properly be made only by a jury.' 'Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it', Prosser, supra, § 37, p 205.

Whether those facts have been proved is a question for the jury. 'Professor Green argues that it is impossible in the nature of things for the duty problem to be decided by the jury, for if the court sends the issue to the jury this 'necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.' But that is not so. As in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant's conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant's conduct clearly below the standard of reasonable care.' 2 Harper & James, The Law of Torts, p 1060. 

In Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 59 A.L.R. 1253] a man carrying a package of fireworks attempted to board a moving train, assisted by defendant's employee. The package was dislodged, fell, and exploded, causing a platform to fall down and strike plaintiff, who was standing several feet away. The court found that negligence in the abstract is not a tort and that there must be a violation of a duty toward the plaintiff, who cannot recover merely for negligence towards someone else. (162 N.E. at p. 101.) Therefore, Helen Palsgraf, as the unforeseeable plaintiff, could not recover from defendant for its employee's negligence. Duty is founded only on the foreseeability of some harm to the plaintiff in fact injured. ''Proof of negligence in the air, so to speak, will not do.'' (162 N.E. at p. 99.)

The question of proximate cause is not involved where there is no negligence as to the particular plaintiff. Hence, the admonition of writers to ''look for the duty before you talk causation,'' because ''there is no duty to an unforeseeable plaintiff.'' (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 733, pp. 61-62; see also Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 220 [157 P.2d 372, 158 A.L.R. 872] (conc. opn.); Rest.2d Torts, § 281, com. c.)

Thus, in determining to whom a legal duty is owed, foreseeability is the prime element by which courts are guided. However, the existence of a legal duty is not to be bottomed on the factor of foreseeability alone. The Supreme Court in Rowland v. Christian, supra, 69 Cal.2d 108, 113, advanced the following considerations in evaluating whether a duty of care was owed: 'The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'

The Supreme Court, however, to ensure recognition that the law does not champion legal redress for all foreseeable harm, stated in Dillon v. Legg (1968) 68 Cal.2d 728, 739 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: 'In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.' (Italics added.) The court in Dillon sought to confine the potential reach of foreseeability by limiting it to 'those risks or hazards whose likelihood made the conduct unreasonably dangerous' and, then, by evaluating the nature of the injury and its causal relation to the conduct which caused it. (68 Cal.2d at p. 739.)

Dillon was followed by Rodriquez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [115 Cal. Rptr. 765, 525 P.2d 669], wherein the court stated: ''Whether a risk is sufficiently foreseeable to give rise to a duty of care depends on the circumstances of each case, including the relationship of the parties and the nature of the threatened injury.'' (Id., at p. 399.)

Soon thereafter, in Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal. Rptr. 302, 563 P.2d 858] and Baxter v. Superior Court (1977) 19 Cal.3d 461 [138 Cal. Rptr. 315, 563 P.2d 871], the court decided the social burden of expanding liability to encompass a novel cause of action for loss of parent-child consortium was unwarranted. It adopted the rationale of cases which forthrightly acknowledged that Dillon's limitations on duty are formed by more than lack of foreseeability. As the Supreme Court said in Borer: ''Nevertheless our decision must take into account considerations in addition to logical symmetry and sympathetic appeal. . . . Not every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.'' (Borer v. American Airlines, Inc., supra, 19 Cal.3d at pp. 446-447.)

Thus, despite the broad maxim that for every wrong there is a remedy, the courts and Legislature of California have decided that not all injuries are compensable at law. (Justus v. Atchison, supra, 19 Cal.3d 564 [death of stillborn is not actionable under wrongful death statute]; Civ. Code, § 29 [child may not sue his or her parents for 'wrongful life'].) Plaintiff's alleged injuries must necessarily fall within that category.  A motorist cannot reasonably foresee that his or her negligent conduct might injure a child subsequently conceived by a woman several years after a car accident.

The creation of a legal duty requires more than a mere possibility of occurrence since, through hindsight, everything is foreseeable.

Judicial discretion is an integral part of the duty concept in evaluating foreseeability of harm. That sentiment is best evidenced by the following comment by Dean Prosser: 'In the end the court will decide whether there is a duty on the basis of the mores of the community, 'always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.'' (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev 1, 15.)

The concept of legal duty necessarily includes and expresses considerations of social policy. The trial court's determination with respect to those considerations have merit and rationality.