Duty is the first element of a negligence claim and is heavily tested on the bar exam. It focuses on whether the defendant owed a legal obligation to the plaintiff.
On the bar exam, duty is often tested through questions involving foreseeability, relationships between parties, and policy-based limitations. Understanding duty is critical because if no duty exists, the negligence claim fails immediately—no need to analyze breach, causation, or damages.
What Is Duty in Negligence?
Duty asks whether the defendant was required to conform to a particular standard of conduct for the protection of others.
On the bar exam, this is usually framed as whether the defendant owed a duty of reasonable care under the circumstances.
General Rule: Reasonable Person Standard
Most negligence cases apply the reasonable person standard. This asks how a hypothetical reasonable person would act under similar circumstances.
The defendant is compared against this objective standard—not their personal intentions or beliefs.
When Duty Exists (Common Scenarios)
Duty is broadly recognized in situations where harm is foreseeable. Common bar exam scenarios include:
• Drivers owe a duty to other drivers and pedestrians
• Property owners owe duties to entrants (invitees, licensees, trespassers)
• Professionals owe duties based on their specialized skills
When Duty May Be Limited
Courts may limit duty in certain situations, particularly where policy concerns outweigh foreseeability.
Examples include:
• No duty to rescue (absent a special relationship)
• Limited liability for unforeseeable plaintiffs
• Special rules for landowners and third-party conduct
How Duty Is Tested on the Bar Exam
Duty is often tested as a threshold issue. If duty is missing, the analysis ends immediately.
On essays, always begin with duty before moving to breach. On multiple-choice questions, duty may be embedded in fact patterns involving relationships, foreseeability, or policy limitations.