See also Special relationship/duty rule. As a general rule, a person has no affirmative duty to aid or protect another. See Walls v. Oxford Management Co., 137 N.H. 653, 656, 633 A.2d 103, 104 (1993). Such a duty may arise, however, if a special relationship exists. See, e.g., Murdock v. City of Keene, 137 N.H. 70, 72, 623 A.2d 755, 756 (1993). 'The relation of the parties determines whether any duty to use due care is imposed by law upon one party for the benefit of another. If there is no relationship, there is no duty.' Guitarini v. Company, 98 N.H. 118, 119, 95 A.2d 784, 785 (1953) (quotation omitted).
Under common law, the universally accepted rule, articulated in section 314 of the Restatement (Second) of Torts is that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a 'special relationship' between the parties. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988); Restatement (Second) of Torts §§ 314, 314A (1965); E. Kellett, Comment Note: Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619, 1966 WL 15422 (1966).
Historically, there have been four 'special relationships' which courts have recognized, namely, common carrier-passenger, innkeeper-guest, business invitor-invitee, and voluntary custodian-protectee. Marshall, 222 Ill.2d at 438, 305 Ill.Dec. 897, 856 N.E.2d 1048; Restatement (Second) of Torts § 314A (1965). When one of these special relationships exists between the parties and an unreasonable risk of physical harm arises within the scope of that relationship, an obligation may be imposed on the one to exercise reasonable care to protect the other from such risk, if the risk is reasonably foreseeable, or to render first aid when it is known that such aid is needed. See Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 559-60, 328 N.E.2d 538 (1975); Restatement (Second) of Torts § 314A (1965). The existence of one of these four 'special relationships' has typically been the basis for imposing an affirmative duty to act where one would not ordinarily exist. The Restatement (Third) of Torts: Liability for Physical Harm § 40, Proposed Final Draft No. 1 (April 6, 2005), has added employer-employee, school-student, and landlord-tenant as additional 'special relationships.'
Some have found Agency law to be applicable. Section 471 of the Restatement (Second) of Agency (Restatement (Second) of Agency § 471 (1958)) provides as follows: 'A principal is subject to liability in an action of tort for failing to use care to warn an agent of an unreasonable risk involved in the employment, if the principal should realize that it exists and that the agent is likely not to become aware of it, thereby suffering harm.' Restatement (Second) of Agency § 471, at 405 (1958). Comment a, following this section, explains the rationale for the rule: 'One who is requested or directed by another to act on his account has reason to believe that the other will give him information of the risks to be encountered of which the other knows and which he should realize are unknown to the one so requested to act. Further, if the one making the request is in a better position to know of the risks to be encountered, the one of whom the request is made may reasonably believe that he will be informed of facts which the other, because of his position, should know. From this it follows that a principal requesting or directing an agent to act is under a duty to disclose to the agent the risks which he knows or should know are likely to be encountered by the agent [in performing the requested acts.]'5 Restatement (Second) of Agency § 471, Comment a, at 405 (1958). See MacDonald v. Hinton, 361 Ill.App.3d 378, 297 Ill.Dec. 162, 836 N.E.2d 893 (2005); Petersen v. U.S. Reduction Co., 267 Ill.App.3d 775, 204 Ill.Dec. 415, 641 N.E.2d 845 (1994).
Applying this rationale, courts that have found a duty to warn in reliance on section 471 of the Restatement (Second) of Agency have treated the duty as an extension of an employer's general obligation to provide a safe workplace for his employees. See, e.g., Blake v. Consolidated R. Corp., 176 Mich.App. 506, 516, 439 N.W.2d 914, 919 (1989) (railroad was held liable to the estates of three railroad employees who were murdered by an individual known to be carrying out a vendetta against the railroad based on court's finding that railroad had a duty to warn and protect its employees from criminal assault against them during the course of employment; duty could be inferred from employer's duty to provide a safe workplace for its employees); Dahlgren v. Coe, 311 Mass. 18, 40 N.E.2d 5 (1942) (employer liable for injuries to laundress scalded by hot water when employer knew water was excessively heated but did not warn laundress).
The duty to warn, identified in section 471 of the Restatement (Second) of Agency, does not arise unless the unreasonable risk of harm is 'involved in the employment.' MacDonald v. Hinton, 361 Ill.App.3d at 385, 297 Ill.Dec. 162, 836 N.E.2d 893 (to state a claim for negligent failure to warn of a risk 'involved in the employment,' the risk must arise from the particular nature of the employment). To understand what it means to be 'involved in the employment,' we turn to comment b of section 471 of the Restatement (Second) of Agency. There, the Restatement sets forth an example of a situation where a principal might be held liable for physical harm to his agent based on the principal's breach of his duty of disclosure. Comment b provides that a landlord may be held liable if he directs his agent to collect rent from a tenant without warning the agent that the tenant has a propensity to assault rent collectors and the agent, while collecting rent, is physically assaulted by the tenant. Also, an illustration following comment b provides that P may be subject to liability to A where P claims title to land occupied by T, P directs A to work the land without warning A that T has threatened to 'resist by force' attempts by anyone to work the land, and T shoots A while A is working the land.
The no-affirmative-duty rule, as a common law tort principle, has been retained in every jurisdiction. See Restatement (Third) of Torts: Liability for Physical Harm § 37, Reporter's Note, at 719, Proposed Final Draft No. 1 (April 6, 2005) ('no court has adopted an affirmative duty to assist in a rescue'); J. Adler, Relying upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 Wis. L.Rev. 867, 868 (1991) ('But in spite of early and repeated calls for reform, no recorded case has expressly adopted the requirement-which at first blush would appear to be relatively harmless-that people have a responsibility to engage in even an `easy rescue''). Some states have legislatively created narrow exceptions to the no-affirmative-duty rule, imposing criminal sanctions if a person who is present when certain violent crimes are taking place fails to notify police or, in some instances, fails to render assistance to the victim. Some states have enacted laws imposing criminal sanctions if a person, present at the scene, fails to notify police that a sexual assault (Florida, Massachusetts, Rhode Island) or other violent crime (Vermont, Minnesota, Ohio, Washington, and Wisconsin) is taking place; Wisconsin permits one who witnesses a violent crime to either notify police or render assistance to the victim; two states (Rhode Island and Vermont) require one who is present at the scene of a violent crime to render 'reasonable assistance' to persons known to be exposed to grave physical harm, when the provision of such aid can be accomplished without danger to oneself or others. See S. Heyman, Foundations of the Duty to Rescue, 47 Vand. L.Rev. 673, 689 n. 66 (1994).
However, none of these statutes provide for a civil cause of action. A Vermont statute (12 Vt. Stat. Ann. tit. 12, § 519 (2002)) provides for a civil cause of action if a rescuer, in providing assistance, acts with gross negligence, but the statute does not recognize a civil cause of action for the failure to give reasonable assistance.
Given the wide acceptance of the no-duty rule and the 'special relationship' doctrine, it cannot be said that they are 'antiquated' or 'outmoded.' Abandonment of the no-duty rule would create a number of practical difficulties-defining the parameters of an affirmative obligation and enforcement, to name just two. See Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 234, 216 Ill.Dec. 703, 665 N.E.2d 1260 (1996). See also S. Heyman, Foundations of the Duty to Rescue, 47 Vand. L.Rev. 673, 675 (1994). As noted by Prosser and Keeton, 'the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue one, has limited any tendency to depart from the rule to cases where some special relation between the parties has afforded a justification for the creation of a duty, without any question of setting up a rule of universal application.' W. Keeton, Prosser & Keeton on Torts § 56, at 376 (5th ed.1984).
In Rhodes, the court said, 'the impracticality of imposing a legal duty to rescue between parties who stand in no special relationship to each other would leave us hesitant to do so.' Rhodes, 172 Ill.2d at 234, 216 Ill.Dec. 703, 665 N.E.2d 1260.
As a general rule, an individual does not have a duty to aid or protect another person, even if he knows that person needs assistance. L.S. Ayres v. Hicks, 220 Ind. 86, 93, 40 N.E.2d 334, 337 (1942), reh'g denied w/opinion 220 Ind. 86, 220 Ind. 98, 41 N.E.2d 195, 40 N.E.2d 334, 41 N.E.2d 356 (1942). See also Restatement (Second) of Torts § 314 ('The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.') (hereinafter, 'Restatement'). However, both common law and statutory exceptions to that general rule exist. See, e.g., Restatement § 314B (employer has a duty to protect or aid an injured employee); Ind. Code § 35-46-1-4 (neglect of a dependent is a felony). See also L.S. Ayres, 220 Ind. at 94, 40 N.E.2d at 337 ('under some circumstances, moral and humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person').
Section 314A of the Restatement provides the following exception to the general rule that one person need not assist another: 1) A common carrier is under a duty to its passengers to take reasonable action: (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) An innkeeper is under a similar duty to his guests. (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation. (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
The duty that arises under Section 314A exists because of the special relationship between the parties. Restatement § 314A, cmt. b. The relationships listed in the rule are not intended to be exclusive, id; nevertheless, some courts have restricted the application of § 314A to business invitees. See, e.g., Gilbertson v. Leininger, 599 N.W.2d 127, 131 (Minn. 1999) (holding host to an overnight social guest does not have a duty under § 314A). In addition, the exception applies only while the relationship exists, so once the passenger leaves the train or the guest leaves the hotel, the railroad or hotel no longer has a duty to aid or protect an ill or injured individual. Restatement § 314A, cmt. c. See also Sachs v. TWA Getaway Vacations, Inc., 125 F. Supp. 2d 1368, 1374 (S.D. Fla. 2000) (holding tour operator had no duty to protect tour participants when on bus not owned by tour operator); but see Kellner v. Lowney, 145 N.H. 195, 761 A.2d 421 (N.H. 2000) (holding motel owner could be liable for injury to boy crossing public highway between two portions of motel property because owner should have foreseen the risk to his guests of crossing the highway to get from hotel rooms to portion of hotel property where religious services were held).
In L.S. Ayres, the court considered whether a department store, which was not in any way liable for a boy's initial injury by an escalator, nevertheless could be held liable for aggravation of the injuries caused by its employees' failure to stop the escalator. The court determined there may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the injury resulted from use of an instrumentality under the control of the defendant. Such an obligation may exist although the accident or original injury was caused by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant. Other relationships may impose a like obligation, but it is not necessary to pursue that inquiry further at this time. 220 Ind. at 95, 40 N.E.2d at 337. The court noted that the boy 'was an invitee and he received his initial injury in using an instrumentality provided by' L.S. Ayres and then held L.S. Ayres could be liable for the aggravation of the boy's injury caused by its failure to assist him. Id.; 40 N.E.2d at 337-38.
The duty to give aid to one who is ill or injured extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third person, or to the negligence of the plaintiff himself, as where a passenger has injured himself by clumsily bumping his head against a door.
Restatement § 314A, cmt d. A number of the illustrations provided in the Restatement parallel the fact pattern here and suggest Taco Bell had a duty to assist Baker. For example, Illustration 2 provides: A, a passenger riding on the train of B Railroad, suffers an apoplectic stroke, and becomes unconscious. The train crew unreasonably assumes that A is drunk, and does nothing to obtain medical assistance for him, or to turn him over at a station to those who will do so. A continues to ride on the train in an unconscious condition for five hours during which time his illness is aggravated in a manner which proper medical attention would have avoided. B Railroad is subject to liability to A for the aggravation of his illness. Id. § 314A. Illustration 7 provides: A is a small child sent by his parents for the day to B's kindergarten. In the course of the day A becomes ill with scarlet fever. Although recognizing that A is seriously ill, B does nothing to obtain medical assistance, or to take the child home or remove him to a place where help can be obtained. As a result, A's illness is aggravated in a manner which proper medical attention would have avoided. B is subject to liability to A for the aggravation of his injuries. Id.
See, e.g., Gingeleskie v. Westin Hotel, et al., 1998 U.S. App. LEXIS 10535, 1998 WL 279393 at **2 (9th Cir. 1998) (holding question of fact existed regarding whether hotel took reasonable steps under § 314A to get a sick man to a hospital when the employee called a cab rather than an ambulance); Estate of Starling v. Fisherman's Pier, Inc., 401 So. 2d 1136, 1138 (Fla. Dist. Ct. App. 1981) (holding business has an affirmative duty to take steps to protect a drunk man passed out on business's pier, such that he would not roll into the ocean and drown), rev. denied 411 So. 2d 381 (Fla. 1981); Miller v. McDonald's Corporation, 439 So. 2d 561, 565 (La. Ct. App. 1983) (holding business owner had duty to render reasonable aid after learning person on his premises is injured or ill and remanding to allow plaintiff to amend his complaint to so allege), writ not considered 442 So. 2d 462 (La. 1983); Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84, 91-92 (Md. 1993) (holding business had a duty to provide aid to injured customer by calling the police when a customer requested the employee do so); Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W. Va. 689, 271 S.E.2d 335, 338-40 (W. Va. 1980) (holding business had duty under § 314A of the Restatement to help a man who fainted and that whether business met that duty was a question of fact for the jury); Lloyd v. S.S. Kresge Co., d/b/a K-MART, 85 Wis. 2d 296, 270 N.W.2d 423, 426-27 (Wis. Ct. App. 1978) (holding question of fact existed regarding whether K-Mart failed to give reasonable assistance to customer who was ill when it forced her to wait for her ride outside the store on a cold winter night).