Misusing the 'No Duty' Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions
26 Pages Posted: 15 Nov 2015
Date Written: October 31, 2015
Abstract
Courts misuse the “no duty” doctrine in torts cases when they really mean there has been “no breach” of the duty of care. "No duty” should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to “duty.” It is relevant to “breach.” Relying on the “duty” doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.
Keywords: Torts, Duty, Breach of Duty, Foreseeability, Restatement
JEL Classification: K13
Suggested Citation: Suggested Citation
Sugarman, Stephen D., Misusing the 'No Duty' Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions (October 31, 2015). Available at SSRN: https://ssrn.com/abstract=2690393 or http://dx.doi.org/10.2139/ssrn.2690393
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