Duty Wars

Abstract

Renewed interest in the role of duty in tort law has generated considerable scholarly discourse. The Third Restatement of Torts' treatment of duty and the writings of John Goldberg and Ben Zipursky have generated a lively debate that has been joined by a number of other torts scholars. The focus has been on the accuracy of various descriptive accounts of duty in tort law. Inevitably, though, the debate has extended to the normative question of what role duty ought to play in determining liability for accidental injuries and the effect of various tort theories on that question.

This Article joins that debate. Co-authored by one of the Reporters for the Third Restatement and another who has been active in writing about the Restatement and its conception of duty, the Article defends the Third Restatement. In the ordinary misfeasance case involving physical harm, the ordinary duty is one of reasonable care. In such cases, courts need not be concerned with whether a duty exists and its contents. In unusual cases, however, when there is a countervailing principle or policy, courts appropriately may decide that the ordinary duty should be modified or removed.

The Article explains the role of California duty decisions and their influence on the rest of the country's duty jurisprudence and the Restatement's reflection of that body of law. Necessary to any consideration of duty is its categorical nature, which is at tension with the way in which some courts use duty for jury control. The Article proceeds to canvass the extent to which duty is a relational concept or, instead, focuses on the act of the defendant, thus returning to the conflict between the Holmesian "duty of all to all" and Cardozo in Palgraf, who insisted that duty was a relational concept. It also confronts and explains the Restatement's rejection of foreseeabilty as having a role in the duty analysis, based on earlier work by one of the authors, and concludes with a normative defense of the Restatement's approach to duty.

Keywords: tort, duty, negligence