Informed Bystanders' Duty to Warn

73 Pages Posted: 4 Dec 2024 Last revised: 7 Feb 2025

See all articles by Gilat Juli Bachar

Gilat Juli Bachar

Temple University - James E. Beasley School of Law

Date Written: March 01, 2024

Abstract

Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common law, the “No Duty to Act” (“no-duty”) rule generally does not require bystanders to warn strangers. Carving out an exception to this rule decades ago, Tarasoff v. Regents of the University of California imposed a duty on a mental health professional to warn a prospective victim about the risk posed by a dangerous patient. Yet existing tort scholarship and doctrine undertheorize the grounds for such a duty to warn, and courts struggle to apply the duty in appropriate cases beyond the medical context. 

Offering a fresh take on Tarasoff, this Article makes the case for a duty to warn owed by those I define as “informed bystanders.” I first identify four criteria that courts tend to implicitly consider in deciding whether to recognize the duty: Expertise; Certainty; Cost; and Position of Power or Special Capacity. I then question the theoretical necessity of expertise as one of these criteria. Next, I advance two arguments to support informed bystanders’ duty to warn. The first argument—couched both in the common law’s self-interested individualism and in feminist legal theory—posits that the no-duty rule’s default should be flipped to generally recognize a duty to warn. According to the second, narrower argument, the no-duty rule need not be changed. Instead, existing exceptions to the rule should apply to the special relationship between informed bystanders and future wrongdoers or victims. Finally, I address potential pushbacks, contemplate models for implementing the duty, and flag cross-private law implications. The Article thus begins a crucial conversation on tort law’s nasty habit: allowing bystanders to withhold information that could prevent harm to others.

Keywords: Tarasoff, duty to warn, bystander, special relationship, feminist legal theory, credible information, tort, mandatory reporting, individualism, duty to rescue, moral agency

Suggested Citation

Bachar, Gilat Juli, Informed Bystanders' Duty to Warn (March 01, 2024). 109 Minnesota Law Review 75 (2024), Temple University Legal Studies Research Paper No. 2025-01, Available at SSRN: https://ssrn.com/abstract=5041010 or http://dx.doi.org/10.2139/ssrn.5041010

Gilat Juli Bachar (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
170
Abstract Views
651
Rank
378,178
PlumX Metrics