Legal Duty

 

            The accepted definition of “legal duty” by the following courts from Wharton is, to wit:

A legal duty is that which the law requires to be done or forborne to a determinate person, or to the public at large, and is correlative to a right vested in such determinate person, or the public at large”  Wharton on Neg. § 24.  [Emphasis added]

 

            See also Pennsylvania Co. v. Frana, 13 Ill.App. 91, 97 (App. Ct. Ill 1883); Randlette v. Judkins, 52 Am.Rep. 747, 748 (Sup. Ct. Maine 1885); Emry v. Roanoke Nav. & Water Pwr. Co., 16 S.E. 18, 18 (Sup. Ct. N.C. 1892); Goodlander Mill Co. V. Standard Oil Co., 63 F. 400 (7^th Cir. 1894); Western Maryland R.Co. v. Kehoe, 35 A. 90, 94 (Ct of App. Maryland 1896);  Smith v. Clarke Hardware Co., 28 S.E. 73, 74 (Sup. Ct Georgia 1897);  Cleveland, C., & St. L. Ry. Co. v. Ballentine, 84 F. 935, 937 (7^th Cir. 1898);  Standard Oil Co. v. Murray, 119 F. 572, 575 (7^th Cir. 1902);  Kershaw Motor Co. v. Southern Ry. Co., 134 S.E. 377, 379 (Sup. Ct. S.C. 1926);  Toadvine v. Cincinnati, N.O. & T.P. Ry. Co., 20 F.Supp. 226, 227 (D.C. E.D. Kentucky 1937);  Dabbs. V. Tennessee Valley Authority,  250 S.W.2d 67, 69-70 (Sup. Ct. Tenn. 1952); People v. McGreal, 278 N.E.2d 504, 510 (App. Ct. Ill. 1972); Thompson v. Occidental Life Ins. Co. of California, 567 P.2d 62, 69-70 (Ct. of App. N.M. 1977); Posteher v. Pana Community Unit Schood Dist. No. 8, 421 N.E.2d 1049, 1052 (App. Ct. Ill. 1981); AFG Industries, Inc. v. Holston Elec. Co-op, 556 F.Supp 33, 34 (D.C. E.D. Tenn. 1982); Green v. Investors Home Mortg. Corp., 13 Va. Cir. 181, 185 (Cir. Ct. Virginia 1988); State v. Scott, 781 S.W.2d 64, 67 (Sup. Ct. Missouri 1990); Dooley v. Everett, 805 S.W.2d 380, 384 (Ct. of App. Tenn. 1991); Odette’s, Inc. v. Com., Dept. of Conservation and Natural Resources, Bureau of State Parks, 699 A.2d 775, 780 (Comm. Ct. Penn. 1997).

            Correlative - Blacks 6^th – “Having a mutual or reciprocal relation, in such sense that the existence of one necessarily implies the existence of the other.  Father and son are correlative terms, as are claim and duty.”

            Determinate – Blacks 6^th – “That which is ascertained; what is particularly designated.

            Ascertain – Blacks 6^th - To fix; to render certain or definite; to estimate and determine; to clear of doubt or obscurity.  To insure as a certainty.  To find out by investigation.  U.S. Çarver, 260 U.S. 482, 489 (1923).  Sometimes it means to “assess”’ or to “hear, try and determine.”

            As held in Emry v. Roanoke Nav. & Water Pwr. Co., 16 S.E. 18, 18 (Sup. Ct. N.C. 1892), to wit:

“The duty itself arises out of various relationships of life, and varies in obligation under different circumstances. In one case the duty is high and imperative; in another it is of imperfect obligation. Thus it may be dependent on a mere license to enter upon land, or the bare obligation to avoid inflicting a willful injury upon a trespasser; while, upon the other hand, it may be a duty to care for the safety of a specially invited guest or of a passenger for hire.” 16 Amer. & Eng. Enc. Law. 412, and the numerous cases cited.

 

            As pronounced in Western Maryland R.Co. v. Kehoe, 35 A. 90, 94 (Ct of App. Maryland 1896), to wit:

This breach can consist either in the failure to do that which ought to be done, or in doing that which ought not be done. Heaven v. Pender, 11 Q. B. Div. 506. But the duty on the one side is only the correlative of the right on the other side, and hence the duty to act or to refrain from acting cannot be extended beyond the right to have the act done or refrained from. Beyond the limits or scope, therefore, of a particular right, as that right is defined, there is no corresponding legal duty due; and, if there be no duty due, there can be no breach, and consequently no negligence. Kahl v. Love, 37 N. J. Law, 5.

 

            As pronounced in Thompson v. Occidental Life Ins. Co. of California, 567 P.2d 62, 69-70 (Ct. of App. N.M. 1977), to wit:

A “legal duty” is defined in 28 C.J.S. “Duty” at 597 (1941) as follows:

*628 **70 The term implies the existence of some relation of duty, public or private, special or general, either by contract or as an implication of public policy; and has been defined as an obligation arising from contract of the parties or the operation of law; that which the law requires to be done or forborne to a determinate person or to the public at large, and is correlative to a right vested in such determinate person or in the public.

It has also been said that a legal duty implies the existence of some legal relation. Early v. Houser & Houser, 28 Ga.App. 24, 109 S.E. 914 (1921).

 

            “Operation of law” - Blacks 6^th – This term expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, with the act or co-operation of the party himself.

            “Rule of law” – Blacks 6^th – A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition.  Called a “rule,” because in doubtful or unforeseen cases it is a guide or norm for their decision.  The rule of law, sometimes called “the supremacy of law”, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.

Legal Duty is a Question of Law

            “The existence of a known legal duty owed by a taxpayer is a question of law for the court”, and this was held in U.S. v. Pirro, 96 F.Supp.2d 279, 283 (D.C. S.D. N.Y. 1999). Affirmed in U.S. v. Pirro,  212 F.3d 86 ( 2^nd Cir. 2000).

            See also U.S. v. Ingredient Tech. Corp., 698 F.2d 88 (2^nd Cir. 1983). 

            It would be very confusing to the jury to have opposing opinions of the law admitted into evidence involving a factual question for them to decide and if the tax law is uncertain, the Indictment should be dismissed. This is a question of law for the Court.  This is the pronouncement in the adjudged case of U.S. v. Ingredient Tech. Corp., 698 F.2d 88 (2^nd Cir. 1983), to wit:

. . . it would be very confusing to a jury to have opposing opinions of law admitted into evidence as involving a factual question for them to decide.   Indeed, as that dissent points out, the inevitable logic of the majority's decision in Garber is that if the tax law is uncertain, the indictment should be dismissed.   Questions of law are for the court.   United States v. Bronston, 658 F.2d 920, 930 (2d Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982);  Marx & Co. v. Diners Club, Inc., 550 F.2d 505, 509-10 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977).

 

            “It is not for witnesses to instruct the jury as to applicable principles of law, but for the judge.” as pronounced in Marx & Co. v. Diners Club, Inc., 550 F.2d 505, 509-510 (2^nd Cir. 1977), cert denied, 434 U.S. 861 (1977).  An further ibid at 510 “(Construction (of a contract) is always a matter of law for the Court.”).  See also U.S. v. Lanni, 466 F.2d 1102, 1110 (3^rd Cir. 1972).  “It is settled that when the law is vague or highly debatable, a defendant-actually or imputedly-lacks the requisite intent to violate it.” as held in U.S. v. Critzer, 498 F.2d 1160, 1162 (4^th Cir. 1974).  See also U.S. v. Mallas, 762 F.2d 361 (4^th Cir. 1985).  

            Also Mallas at 363, to wit:

Criminal prosecution for the violation of an unclear duty itself violates the clear constitutional duty of the government to warn citizens whether particular conduct is legal or illegal.   See generally Note, Criminal Liability for Evasion of an Uncertain Tax, 81 Col.L.Rev. 1348 (1981).   As Critzer indicates, this same requirement arises from the rule of 26 U.S.C. ß  7206 that only a “willful” tax evasion is criminal.   Willful conduct under ß  7206, which the Supreme Court described in United States v. Pomponio as “voluntary intentional violation of a known duty,” 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976), requires that the duty involved must be knowable.   See also James v. United States, 366 U.S. 213, 221-222, 81 S.Ct. 1052, 1056-1057, 6 L.Ed.2d 246 (1961).  [Emphasis added]                       

 

            “It is perfectly clear, therefore, that if the word “duty,” as employed in the [jury] instruction, meant legal duty, then it left a question of law to the determination of the jury, and that was an error.” as held in Pennsylvania Co. v. Frana, 13 Ill.App. 91, 97 (App. Ct. Ill 1883).

Ignorance of the Law is Not an Excuse

            In the pronouncement in Cheek v. United States, 498 U.S. 192, 199 (1991), ignorance of the law is not an excuse and the law must be definite and knowable, to wit:

The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.   See, e.g., United States v. Smith, 5 Wheat. 153, 182, 5 L.Ed. 57 (1820) (Livingston, J., dissenting);  Barlow v. United States, 7 Pet. 404, 411, 8 L.Ed. 728 (1833);  Reynolds v. United States, 98 U.S. 145, 167, 25 L.Ed. 244 (1879);  Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 666, 54 L.Ed. 930 (1910);  Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957);  Liparota v. United States, 471 U.S. 419, 441, 105 S.Ct. 2084, 2096, 85 L.Ed.2d 434 (1985) (WHITE, J., dissenting);  O. Holmes, The Common Law 47-48 (1881).  

 

            In the adjudged case of United States v. International Minerals & Chemical Corp., 402 U.S. 558, (1971) pronounced that “The principle that ignorance of law is no defense applies whether the law be a statute or a duly promulgated and published regulation.” [Emphasis added]

The Law Must be Knowable and This Includes a Statute and Published Regulation

            In the adjudged decision of Cheek v. United States, 498 U.S. 192, 199, 201-202 (1991)  it was held that willfulness is not disjunctive that there must exist a law that is definite and knowable by the defendant; and, willfulness is not disjunctive that this definite and knowable existing law imposes a legal duty to file by either statute or (substantive) regulation upon the defendant; and, willfulness is not disjunctive with the definite and knowable existing law that imposes the legal duty to file must be known by the defendant; and, willfulness is not disjunctive that the defendant voluntarily and intentionally violated that known legal duty imposed by the definite and knowable existing law. 

            Therefore to make willfulness a crime by the defendant, all of the essential elements are as follows, to wit:

1.         There must exist a definite and knowable law; and,

2.         This definite and knowable law must impose a legal duty to file by statute or (substantive) regulation; and,

3.         This legal duty to file imposed by the definite and knowable law by statute or (substantive) regulation must be known by the defendant; and,

4.         The defendant must have voluntarily and knowingly violated this known legal duty imposed by the definite and knowable existing law by statute or (substantive) regulation. 

            This was held in the adjudged decision in Cheek v. United States, 498 U.S. 192, 199, 201-202 (1991), to wit:

At 199 - Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law.   This common-law rule has been applied by the Court in numerous cases construing criminal statutes.   See, e.g., United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971);  Hamling v. United States, 418 U.S. 87, 119-124, 94 S.Ct. 2887, 2808-2911, 41 L.Ed.2d 590 (1974);  Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952).  [Emphasis added]

* * *

At 201-202 - Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.   We deal first with the case where the issue is whether the defendant knew of the duty purportedly imposed by the provision of the statute or regulation he is accused of violating, a case in which there is no claim that the provision  *202 at issue is invalid.   In such a case, if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge component of the willfulness requirement.   But carrying this burden requires negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws.   This is so **611 because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist.   In the end, the issue is whether, based on all the evidence, the Government has proved that the defendant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable.

                In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not purport to treat wages as income, and the jury believed him, the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief.   Of course, in deciding whether to credit Cheek's good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal income tax return forms and accompanying instructions that made it plain that wages should be returned as income. [Emphasis added]

To Avoid Snaring People – The Government Must Prove Willfulness

            In the pronouncement of United States v. Bok, 156 F.3d 157, 165 (2^nd Cir. 1998) citing two cases of the Supreme Court of the United States, to avoid snaring people by the tax code due to incompetence, willfulness requires the government prove “a voluntary, intentional violation of a known legal duty”, to wit:

Both Sec. 7201 and Sec. 7206(1) require that the government prove that the defendant acted willfully.   And the Supreme Court has made clear that in order to avoid snaring people in the tangled net of the tax code solely due to their incompetence, willfulness under the tax laws requires “ ‘a voluntary, intentional violation of a known legal duty.’ ”  Cheek v. United States, 498 U.S. 192, 200-01, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (quoting United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973));  see also Klausner, 80 F.3d at 62-63.  [Emphasis added]

Technical Terms to be Defined

            Terms that may not be comprehended readily by unprofessional persons or may be misapplied by them, should be defined or explained to give the jury a correct idea of their meaning.  This was pronounced in State v. Jackson, 369 S.W.2d 199, 205 (Sup. Ct. Missouri 1963), to wit:

‘[W]here technical or other terms are used, and their meaning may not be comprehended readily by unprofessional persons, and it appears, from the whole case made, that the jury may possibly misapply them, they may or should be defined or explained in such a way as to give to the jury a correct idea of their meaning.’  23A C.J.S. Crim. Law ß  1191, pp. 484-485.  See also State v. Chevlin, Mo., 284 S.W.2d 563, 567[11, 12]; City of St. Louis v. James Braudis Coal Co., Mo.App., 137 S.W.2d 668, 670, 672-673.

 

Self-Preservation When in Danger

            The natural instinct of self-preservation will ordinarily lead and be adopted by men of ordinary care and prudence if a situation suggests danger of harm, being also a question for the jury.  This is held in the adjudged decision of Weber v. The N.Y. Central & Hudson R.R. Co., 58 N.Y. 451, 456  (Ct of App. N.Y. 1874), to wit:

The natural instinct of self-preservation ordinarily will lead to the employment of all the precautions which the situation suggests to an individual in danger of harm, and whether they are such as would occur to and be adopted by men of ordinary care and prudence must necessarily, in most cases, be a question for the jury.

 

            See also Wichita Y W.R. Co. v. Davis, 16 P. 78, 81-82 (Sup. Ct. Kan. 1887); Percey v. Fitchburg R.Co., 27 N.Y.S. 1040, 1044 (Sup. Ct. 3^rd Dep. N.Y. 1894); Eastland v. Clarke, 59 N.E. 202 , 204 (Ct. of App. N.Y. 1901); Walsh v. Central N.Y. Telephone & Telegraph Co., 77 N.Y.S. 798, 799-801 (Sup. Ct. App. Div. 4^th Dept. N.Y. 1902); Hill v. Union Electirc Light & Power Co., 169 S.W. 345, 356 (Sup. Ct. Missouri 1914); Jonas v. S. Covington & C. St. Ry. Co., 172 S.W. 131, 132 (Ct. of App. Kentucky 1915); Maguire v. Barrett, 119 N.E. 79, 80 (Ct of App. N.Y. 1918).

            If there is a conflict in the evidence of the circumstances upon which the question depends to establish what a man of ordinary prudence and care do under the circumstances proved, this is a question for the jury; and, this was the holding in the adjudged decision of Bernhard v. Rensselaer & S.R. Co., 23 How. Pr. 166, 168 (Sup. Ct. N.Y. County, N.Y. 1861) to wit:

“If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury.  If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury.  If it is necessary to determine, as in *82 most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved, this, involving, as it generally must, more or less conjecture, can only be settled by a jury.”  [Emphasis added]

            See also Edsall v. Vandemark, 39 Barb. 589 (Sup. Ct. N.Y. County, N.Y. 1863);  Ernst v. Hudson River R.Co., 32 How. PR. 61, (Ct. of App. N.Y. 1866); Burke v. Broadway & S.Ave. R.Co., 34 How. Pr. 239 (Sup. Ct. N.Y. County, N.Y. 1867);

            If there is a conflict in the evidence of the circumstances upon which the question depends to establish what a man of ordinary prudence and care would do under the circumstances proved, this is a question for the jury.  Our law is framed upon the theory that the citizen can rely with more security on the concurrent judgment of twelve jurors than on the majority of divided bench.  “The correctness of judicial opinions on mere questions of fact may well be distrusted when we find them confessedly opposed to the common sense of mankind.”  Infra Burke.  This was with precision and perspicacity articulated in the adjudged decision of Ernst v. Hudson River R.Co., 32 How. PR. 61, (Ct. of App. N.Y. 1866) as held in Burke v. Broadway & S.Ave. R.Co., 34 How. Pr. 239 (Sup. Ct. N.Y. County, N.Y. 1867), to wit:

and by Judge SELDEN, in that of Bernhardt v. The Rensselaer and Saratoga R. R. Co. It was said by the latter, with the precision and perspicuity which mark all his judicial opinions, that, “although, as a general rule, questions of negligence belong exclusively to the jury, cases may no doubt arise in which the proof of negligence would be so clear and irresistible, that the court would be justified in assuming, without submitting the question to the jury, that negligence was established. At the same time, it is obvious, considering the nature of the question, that such instances must be rare. If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proved; this, involving, as it generally must, more or less of conjecture, can only be settled by a jury.” (23 How., 168.)

 

The struggle of defendants to inaugurate a different rule, and to induce the courts to resort to artificial refinements for the protection of wrong-doers, is, perhaps, excusable in those who are impatient of legislative restraint. There is an unfortunate and growing tendency to regard human life as of secondary importance in comparison with the objects of commercial and corporate enterprise. The aid of the courts is invoked to annul by indirection the force of general laws. Suits and appeals multiply in the constantly increasing ratio of reckless injuries, which nothing could tend more to encourage than this theory of immunity from civil damages, on the assumption, as matter of law, that a party over whom an engine is driven is culpable for not keeping out of the way, and that the question, whether he was really guilty of negligence, is not one of fact for a jury.

 

If it be true, as is sometimes intimated, even from the bench, that false verdicts are occasionally rendered on questions like this, the remedy is to set them aside and not to usurp the prerogative of the jury. Even among the cases which have been held so plain as to justify a nonsuit, there have been few in which the judges have not themselves disagreed; and the inquiry naturally occurs to the mind whether we are less liable than jurors to err on questions of pure fact pertaining to the ordinary affairs of life. Our law is framed upon the theory that, on such questions, the citizen can rely with more security on the concurrent judgment of twelve jurors than on the majority vote of a divided bench. Unanimity is not required in our decisions on questions of law. It is otherwise with jurors charged with the duty of determining issues of fact; and such issues should not be withheld from the usual arbiters, unless the evidence leads so clearly to one result that there is no room for honest difference between intelligent and upright men. A nonsuit should always be granted where the proof is so clear as to warrant the assumption, in good faith, that if the question were submitted to the jury they would find that the culpable negligence of the plaintiff contributed to the injury. [Emphasis added]

 

            Ibid in Ernst, to wit:

 

But we have had occasion recently to hear nonsuits of this kind justified on the novel ground that unless the fact be determined in one way by the judge, it will be sure to be determined the other by the jury. The correctness of judicial opinions on mere questions of fact may well be distrusted when we find them confessedly opposed to the common sense of mankind.  [Emphasis added]

Fraud, Collusion or Acts Dangerous to the Lives of Others

            The duty of liability need not arise out of any contract or direct privity between parties, but out the duty which the law imposes to avoid acts that in their nature are dangerous to the lives of others.  Where there is fraud or collusion, the party will be liable, even though there is no privity of contract.  This has been held in the adjudged decision of Savings Bank v. Ward, 100 U.S. 195, 204-206 (1879), to wit:

. . . ,the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others. .

* * *

Where there is fraud or collusion, the party will be held liable, even though there is no privity of contract; but *206 where there is neither fraud or collusion nor privity of contract, the party will not be held liable, unless the act is one imminently dangerous to the lives of others, or is an act per formed in pursuance of some legal duty. Langridge v. Levy, 2 Mee. & W. 519, 530.  [Emphasis added]

 

            See also Waters-Pierce Oil Co. v. Beselms, 212 U.S. 159, 178 (1909);  Nelson v. Casey, 279 F. 100, 101-102 (9^th Cir. [AK] 1922); Frank v. Bloom, 634 F.2d 1245, 1257 (10^th Cir. 1980).