Are We Are Brother’s Keeper?

To what extent are we our brother’s keeper?   That is a constant question posed in cutting edge tort cases, and this case in Illinois is no exception.

Iseberg sued his two partners because they failed to warn him that a fourth partner, Slavin, had made threats against Iseberg’s life.  Iseberg was a man of his word:  he shot Iseberg and rendered him a paraplegic.

From the opinion of the Illinois Supreme Court:

"This case presents a question of “duty” in its most basic or ‘primary’ sense, i.e., duty as obligation. See Marshall, 222 Ill. 2d at 436, citing J. Goldberg & B. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001). What we must decide is whether Iseberg and defendants stood in such a relationship to one another that the law imposed on defendants an obligation of reasonable conduct for the benefit of Iseberg. Bajwa, 208 Ill. 2d at 421-22; Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (1996). Under common law, the universally accepted rule, articulated in section 314 of the Restatement (Second) of Torts, and long adhered to by this court, 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."

Here is how the Court resolved the issue:

"The no-affirmative-duty rule and the “special relationship” doctrine stand as the law of this state. Accordingly, an affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship between them. In the case at bar, no such relationship existed between the defendants and Iseberg. Nor was it shown that a principal-agent relationship existed between the parties which gave rise to a duty to warn as provided in section 471 of the Restatement (Second) of Agency. For these reasons, we affirm the judgment of the appellate court."

This opinion does a nice job of discussing the law of duty and is a good refresher course on the subject, even for those of us in Tennessee.

The case is Iseberg v. Gross, Docket No. 103332. ( Ill. S. Ct. October 10, 2007).  Read the opinion here.