California Tort Law: Brown v. Taekwondo U.S.A. and the “no duty to aid” rule


By: Kenneth H. Coronel

Does a bystander have an obligation to come to the aid of another under California law? Under most circumstances, the answer is “no.” A year ago, almost to the day, the California Supreme Court clarified the circumstances under which a person is obligated to come to the aid of a third party. The rule has broad application, beyond the Good Samaritan cases to which it applies. In this blog, we take another look at the Court’s very important ruling. 

On April 1, 2021, the California Supreme Court handed down its decision in Brown v. U.S.A. Taekwondo (2021) 11 Cal.5th 204.  The Court instructed all lower courts to use a two-part analysis to determine if a defendant owed a duty of care to protect a plaintiff harmed by a third party. The Court held that in these cases, a court must (1) ascertain if a “special relationship” existed, and if so, then (2) analyze whether the duty owed to the plaintiff is limited under the factors spelled out in Rowland v. Christian (1968) 69 Cal.2d 108.  

The practical impact of this rule is to substantially limit the circumstances under which one can be held liable for failing to come to the aid of another. This rule is premised on the reluctance of the courts to impose liability for nonfeasance as opposed to misfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created the risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. 

Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. The basic idea is often referred to as the ‘no duty to aid rule,’ which remains a fundamental and longstanding rule of tort law in California. As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for a failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. 

Failure to come to the aid of another is considered nonfeasance. In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another’s harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm. A special relationship between the defendant and the victim is one that gives the victim the right to expect protection from the defendant. 

The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged. Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril. 

Thus, in general, one owes no duty to control the conduct of a third person to prevent him from causing physical harm to another absent a special relationship between the defendant and either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. A feature common to all special relationships is that the defendant had the ability to control the third party and protect the plaintiff. 

The types of relationships that have been ruled to be “special” by the courts are: 

  • Common carrier with its passengers; 
  • An innkeeper with its guests; 
  • A business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises;
  • An employer with its employees; 
  • A school with its students; 
  • A landlord with its tenants; and  
  • Custodian with those in his custody if he is required by law or voluntarily takes custody of the other and the custodian has a superior ability to protect the other. 

The rule has application well beyond the Good Samaritan situation. An example: plaintiff is injured while walking through a street improvement project. The injury resulted when he tripped over a construction sign which was put in the wrong location by the general contractor. Plaintiff sues the contractor and the engineer who was responsible for performing inspections to confirm that the signs were placed in the correct locations. Is the engineer liable if he failed to take steps to protect the plaintiff from stepping on the sign which was in the wrong location? 

In this and similar scenarios, the engineer cannot be held liable. The plaintiff was a member of the public. The engineer did not have a special relationship with the plaintiff. Nor did the engineer have a special relationship with the general contractor that placed the construction signs as the engineer did not have the authority to control the contractor’s acts. 

Thus, Brown has much broader application than Good Samaritan cases and may be invoked in all types of cases in which it is alleged that the defendant committed a tort of nonfeasance. 

For more information on this topic, contact Kenneth H. Coronel. Stay up to date on our latest thought leadership by subscribing to our newsletter here.