-
1
-
-
0348194818
-
The Moral of MacPherson, 146
-
For criticism of the lack of attention to duty doctrine in modern torts scholarship, see
-
For criticism of the lack of attention to duty doctrine in modern torts scholarship, see John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998);
-
(1998)
U. Pa. L. Rev
, vol.1733
-
-
Goldberg, J.C.P.1
Zipursky, B.C.2
-
2
-
-
0345818723
-
-
John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001) [hereinafter Goldberg & Zipursky, Duty in Negligence Law].
-
John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001) [hereinafter Goldberg & Zipursky, Duty in Negligence Law].
-
-
-
-
5
-
-
33846626258
-
-
To be fair, Posner did examine the duty issue in a narrow setting in his article on rescue. See William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83 (1978). The Landes-Posner analysis of rescue anticipates, in some respects, the argument of this paper. However, the Landes-Posner article on rescue does not claim to set out a general theory of duty doctrine, which is the aim of this essay.
-
To be fair, Posner did examine the duty issue in a narrow setting in his article on rescue. See William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83 (1978). The Landes-Posner analysis of rescue anticipates, in some respects, the argument of this paper. However, the Landes-Posner article on rescue does not claim to set out a general theory of duty doctrine, which is the aim of this essay.
-
-
-
-
6
-
-
33846588702
-
-
There is a more general critique of consequentialist, or sanction-centered, theories of law that asserts that they are inadequate because they ignore the internal sense of obligation that is perceived by actors in advanced legal systems. See H.L.A. Hart, The Concept of Law (2d ed. 1994). The lack of attention to duty doctrine reflected in the consequentialist approach could be viewed as an important fact supporting this internal-viewpoint critique. Looking from this perspective, this essay's message is that consequentialist theories are quite capable of explaining duty doctrine.
-
There is a more general critique of consequentialist, or sanction-centered, theories of law that asserts that they are inadequate because they ignore the internal sense of obligation that is perceived by actors in advanced legal systems. See H.L.A. Hart, The Concept of Law (2d ed. 1994). The lack of attention to duty doctrine reflected in the consequentialist approach could be viewed as an important fact supporting this internal-viewpoint critique. Looking from this perspective, this essay's message is that consequentialist theories are quite capable of explaining duty doctrine.
-
-
-
-
7
-
-
33846619517
-
-
In particular, duty doctrine provides a link, in the context of negligence law, between the property and liability rules initially identified in Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
-
In particular, duty doctrine provides a link, in the context of negligence law, between the property and liability rules initially identified in Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
-
-
-
-
8
-
-
33846610840
-
-
For discussion, see infra text accompanying notes 21-22.
-
For discussion, see infra text accompanying notes 21-22.
-
-
-
-
9
-
-
33846575493
-
-
The Learned Hand formula was articulated by Judge Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
-
The Learned Hand formula was articulated by Judge Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
-
-
-
-
10
-
-
33846601665
-
-
For extensive treatments of the traditional economic approach see, note 3, and Steven Shavell, Economic Analysis of Accident Law
-
For extensive treatments of the traditional economic approach see Landes & Posner, supra note 3, and Steven Shavell, Economic Analysis of Accident Law (1987).
-
(1987)
supra
-
-
Landes1
Posner2
-
11
-
-
33846602555
-
-
Of course, this should not be taken to mean that it is obvious. Indeed, the economic efficiency rationale was first articulated only thirty years ago. See Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 1972
-
Of course, this should not be taken to mean that it is obvious. Indeed, the economic efficiency rationale was first articulated only thirty years ago. See Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
-
-
-
-
13
-
-
33846568765
-
-
Posner, supra note 8;
-
Posner, supra note 8;
-
-
-
-
14
-
-
0002775690
-
Strict Liability Versus Negligence, 9
-
Steven Shavell, Strict Liability Versus Negligence, 9 J. Legal Stud. 1 (1980).
-
(1980)
J. Legal Stud
, vol.1
-
-
Shavell, S.1
-
15
-
-
67949107133
-
Rule-Based Negligence and the Regulation of Activity Levels, 21
-
For a critique of the Posner-Shavell approach as a theory of the case law, see
-
For a critique of the Posner-Shavell approach as a theory of the case law, see Stephen G. Gilles, Rule-Based Negligence and the Regulation of Activity Levels, 21 J. Legal Stud. 319 (1992).
-
(1992)
J. Legal Stud
, vol.319
-
-
Gilles, S.G.1
-
16
-
-
33846629318
-
-
This view of the purpose of strict liability was stressed by Judge Posner in Indiana Harbor Belt Railroad v. American Cyanamid Co, 916 F.2d 1174 7th Cir. 1990
-
This view of the purpose of strict liability was stressed by Judge Posner in Indiana Harbor Belt Railroad v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).
-
-
-
-
17
-
-
33846575494
-
-
See, e.g, Landes & Posner, supra note 3
-
See, e.g., Landes & Posner, supra note 3.
-
-
-
-
18
-
-
0346449876
-
The Theory of Tort Doctrine and the Restatement (Third) of Torts, 54
-
Keith N. Hylton, The Theory of Tort Doctrine and the Restatement (Third) of Torts, 54 Vand. L. Rev. 1413 (2001).
-
(2001)
Vand. L. Rev
, vol.1413
-
-
Hylton, K.N.1
-
19
-
-
33846585799
-
-
See generally Landes & Posner, supra note 4
-
See generally Landes & Posner, supra note 4.
-
-
-
-
20
-
-
33846632171
-
-
In particular, Holmes apparently did not see a need to relieve actors of a duty of care. See Oliver Wendell Holmes, Jr., The Theory of Torts, 7 Am. L. Rev. 652, 660 (1873) (endorsing a general duty of all the world to all the world);
-
In particular, Holmes apparently did not see a need to relieve actors of a duty of care. See Oliver Wendell Holmes, Jr., The Theory of Torts, 7 Am. L. Rev. 652, 660 (1873) (endorsing a general duty of "all the world to all the world");
-
-
-
-
22
-
-
33846590811
-
-
Ind. Harbor Belt R.R. Co., 916 F.2d at 1176-77.
-
Ind. Harbor Belt R.R. Co., 916 F.2d at 1176-77.
-
-
-
-
23
-
-
33846631162
-
-
See also, Landes & Posner, supra note 3, at 107-18, which applies the traditional argument to several cases. It is true that in a case such as blasting, a great risk of harm continues to be imposed on others even when reasonable care is being taken.
-
See also, Landes & Posner, supra note 3, at 107-18, which applies the traditional argument to several cases. It is true that in a case such as blasting, a great risk of harm continues to be imposed on others even when reasonable care is being taken.
-
-
-
-
24
-
-
33846597401
-
-
For that reason, the claim that strict liability is appropriate when due care is insufficient seems justifiable. However, there is a residual risk of harm imposed on others in all circumstances of risk-creating conduct-such as driving a car. The theory presented by Landes, Posner, and Shavell implies that strict liability should apply to all such conduct (including automobile use). And the theory runs into difficulty in explaining the negligence rule applied to zoos. See id. at 108. Why should the negligence rule apply in the case of a zoo and strict liability in the case of a private owner of a wild animal?
-
For that reason, the claim that strict liability is appropriate when due care is insufficient seems justifiable. However, there is a residual risk of harm imposed on others in all circumstances of risk-creating conduct-such as driving a car. The theory presented by Landes, Posner, and Shavell implies that strict liability should apply to all such conduct (including automobile use). And the theory runs into difficulty in explaining the negligence rule applied to zoos. See id. at 108. Why should the negligence rule apply in the case of a zoo and strict liability in the case of a private owner of a wild animal?
-
-
-
-
25
-
-
33846619973
-
-
Hylton, supra note 12
-
Hylton, supra note 12.
-
-
-
-
26
-
-
0345786133
-
A Missing Markets Theory of Tort Law, 90
-
Keith N. Hylton, A Missing Markets Theory of Tort Law, 90 Nw. U. L. Rev. 977 (1996).
-
(1996)
Nw. U. L. Rev
, vol.977
-
-
Hylton, K.N.1
-
27
-
-
33846611767
-
-
Id. at 984-93
-
Id. at 984-93.
-
-
-
-
28
-
-
33846641948
-
-
Of course, the driver may benefit directly from offering rides to coworkers, through reciprocal favors. However, he is unlikely, as a general matter, to value the benefits of offering rides to coworkers as much as the coworkers value those benefits themselves
-
Of course, the driver may benefit directly from offering rides to coworkers, through reciprocal favors. However, he is unlikely, as a general matter, to value the benefits of offering rides to coworkers as much as the coworkers value those benefits themselves.
-
-
-
-
29
-
-
33846575029
-
-
Consider the following unitization rationale. Imagine two firms imposing reciprocal costs of one dollar per month on each other. If the firms merged, would they require a transfer of one dollar, both ways, between the merged units? No, because it would have no effect on the incentives of relevant actors. By the same reasoning, when two actors impose the same costs, imposing strict liability on both would not alter their activity levels from the levels chosen under the negligence rule.
-
Consider the following unitization rationale. Imagine two firms imposing reciprocal costs of one dollar per month on each other. If the firms merged, would they require a transfer of one dollar, both ways, between the merged units? No, because it would have no effect on the incentives of relevant actors. By the same reasoning, when two actors impose the same costs, imposing strict liability on both would not alter their activity levels from the levels chosen under the negligence rule.
-
-
-
-
30
-
-
33846564763
-
-
In the case of reciprocal harms, the unitization argument made in note 20 suggests that the activity levels chosen under strict liability will be the same as those chosen under negligence. This implies that there is no need to adopt strict liability in place of negligence in the reciprocal harms setting
-
In the case of reciprocal harms, the unitization argument made in note 20 suggests that the activity levels chosen under strict liability will be the same as those chosen under negligence. This implies that there is no need to adopt strict liability in place of negligence in the reciprocal harms setting.
-
-
-
-
31
-
-
33846638555
-
-
See, e.g., Guzzi v. N.Y. Zoological Soc'y, 182 N.Y.S. 257 (App. Div. 1920), aff'd, 135 N.E. 897 (N.Y. 1922);
-
See, e.g., Guzzi v. N.Y. Zoological Soc'y, 182 N.Y.S. 257 (App. Div. 1920), aff'd, 135 N.E. 897 (N.Y. 1922);
-
-
-
-
32
-
-
33846587747
-
-
City of Denver v. Kennedy, 476 P.2d 762 (Colo. Ct. App. 1970), after remand, 506 P.2d 764 (Colo. Ct. App. 1972).
-
City of Denver v. Kennedy, 476 P.2d 762 (Colo. Ct. App. 1970), after remand, 506 P.2d 764 (Colo. Ct. App. 1972).
-
-
-
-
33
-
-
33846635776
-
-
On property rules and liability rules, see generally Calabresi & Melamed, supra note 6;
-
On property rules and liability rules, see generally Calabresi & Melamed, supra note 6;
-
-
-
-
34
-
-
33748962750
-
-
Keith N. Hylton, Property Rules and Liability Rules, Once Again, 2 Rev. of L. & Econ. 137 (2006), available at http://www.bepress.com/ rle/vol2/iss2/art1;
-
Keith N. Hylton, Property Rules and Liability Rules, Once Again, 2 Rev. of L. & Econ. 137 (2006), available at http://www.bepress.com/ rle/vol2/iss2/art1;
-
-
-
-
35
-
-
0346581482
-
Property Rules Versus Liability Rules: An Economic Analysis, 109
-
Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713 (1996).
-
(1996)
Harv. L. Rev
, vol.713
-
-
Kaplow, L.1
Shavell, S.2
-
36
-
-
33846627576
-
-
Calabresi & Melamed, supra note 6, at 1092
-
Calabresi & Melamed, supra note 6, at 1092.
-
-
-
-
37
-
-
33846566142
-
-
See, e.g., Turbeville v. Mobile Light & R. Co., 127 So. 519 (Ala. 1930);
-
See, e.g., Turbeville v. Mobile Light & R. Co., 127 So. 519 (Ala. 1930);
-
-
-
-
38
-
-
33846593246
-
-
Buch v. Amory Mfg. Co. 44 A. 809 (N.H. 1898);
-
Buch v. Amory Mfg. Co. 44 A. 809 (N.H. 1898);
-
-
-
-
39
-
-
33846616668
-
-
Robert Addie & Sons (Colleries), Ltd. v. Dumbreck, [1929] A.C. 358 (H.L.) (appeal taken from Scot.) (U.K.);
-
Robert Addie & Sons (Colleries), Ltd. v. Dumbreck, [1929] A.C. 358 (H.L.) (appeal taken from Scot.) (U.K.);
-
-
-
-
41
-
-
33846629786
-
-
E.g, A.C. at
-
E.g., Robert Addie & Sons, [1929] A.C. at 367.
-
(1929)
Addie & Sons
, pp. 367
-
-
Robert1
-
42
-
-
33846579920
-
-
See M'Ilvoy v. Cockran, 9 Ky. 271 (1820); Bird v. Holbrook, (1828) 130 Eng. Rep. 911 (C.P.).
-
See M'Ilvoy v. Cockran, 9 Ky. 271 (1820); Bird v. Holbrook, (1828) 130 Eng. Rep. 911 (C.P.).
-
-
-
-
43
-
-
33846574557
-
-
662 N.E.2d 287 (Ohio 1996).
-
662 N.E.2d 287 (Ohio 1996).
-
-
-
-
44
-
-
33846649389
-
-
44 A. 809 (N.H. 1897).
-
44 A. 809 (N.H. 1897).
-
-
-
-
45
-
-
33846642432
-
-
The mill overseer ordered the boy to leave after he had assisted the other employees, in full view of the overseer, for roughly a day and a half. The boy did not leave and was injured soon after being ordered to leave
-
The mill overseer ordered the boy to leave after he had assisted the other employees, in full view of the overseer, for roughly a day and a half. The boy did not leave and was injured soon after being ordered to leave.
-
-
-
-
46
-
-
33846589599
-
-
See, e.g., Coblyn v. Kennedy's Inc., 268 N.E.2d 860 (Mass. 1971);
-
See, e.g., Coblyn v. Kennedy's Inc., 268 N.E.2d 860 (Mass. 1971);
-
-
-
-
47
-
-
33846627140
-
-
R.I
-
Kirby v. Foster, 22 A. 1111 (R.I. 1891).
-
(1891)
Foster, 22 A
, pp. 1111
-
-
Kirby1
-
48
-
-
33846566624
-
-
Calabresi & Melamed, supra note 6
-
Calabresi & Melamed, supra note 6.
-
-
-
-
49
-
-
33846567105
-
-
See Prosser, supra note 25, at 426
-
See Prosser, supra note 25, at 426.
-
-
-
-
50
-
-
33846601666
-
-
See, e.g., Eckert v. Long Island R.R. Co., 43 N.Y. 502 (1871).
-
See, e.g., Eckert v. Long Island R.R. Co., 43 N.Y. 502 (1871).
-
-
-
-
51
-
-
33846562301
-
-
Id
-
Id.
-
-
-
-
52
-
-
33846618076
-
-
Id. at 506
-
Id. at 506.
-
-
-
-
53
-
-
33846592153
-
-
133 N.E. 437 (N.Y. 1921).
-
133 N.E. 437 (N.Y. 1921).
-
-
-
-
54
-
-
33846615325
-
-
Id. at 437-38
-
Id. at 437-38.
-
-
-
-
55
-
-
33846585798
-
-
Certainly society behaves as if the social benefits of high-stakes altruism are substantial. See, e.g., Edward O. Wilson, On Human Nature 149-50 (1978). Perhaps the reason we reward altruism so consistently is because some level of reciprocal altruism is necessary in a well-functioning society.
-
Certainly society behaves as if the social benefits of high-stakes altruism are substantial. See, e.g., Edward O. Wilson, On Human Nature 149-50 (1978). Perhaps the reason we reward altruism so consistently is because some level of reciprocal altruism is necessary in a well-functioning society.
-
-
-
-
56
-
-
33846600255
-
-
The law has so high a regard for human life that it will not impute negligence to an effort to preserve it . . . . Eckert, 43 N.Y. at 506.
-
"The law has so high a regard for human life that it will not impute negligence to an effort to preserve it . . . ." Eckert, 43 N.Y. at 506.
-
-
-
-
57
-
-
33846579921
-
-
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979);
-
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979);
-
-
-
-
58
-
-
33846648329
-
-
Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975).
-
Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975).
-
-
-
-
60
-
-
33846573139
-
-
See, e.g., Zelenko v. Gimbel Bros., 287 N.Y.S. 134, 135 (Sup. Ct. 1935);
-
See, e.g., Zelenko v. Gimbel Bros., 287 N.Y.S. 134, 135 (Sup. Ct. 1935);
-
-
-
-
61
-
-
33846568293
-
-
Black v. N.Y., N.H. & H.R. Co., 79 N.E. 797 (Mass. 1907).
-
Black v. N.Y., N.H. & H.R. Co., 79 N.E. 797 (Mass. 1907).
-
-
-
-
62
-
-
33846608961
-
-
See, e.g., Summers v. Dominguez, 84 P.2d 237 (Cal. Dist. Ct. App. 1938).
-
See, e.g., Summers v. Dominguez, 84 P.2d 237 (Cal. Dist. Ct. App. 1938).
-
-
-
-
63
-
-
33846593136
-
-
See, e.g., Montgomery v. Nat'1 Convoy & Trucking Co., 195 S.E. 247 (S.C. 1937).
-
See, e.g., Montgomery v. Nat'1 Convoy & Trucking Co., 195 S.E. 247 (S.C. 1937).
-
-
-
-
64
-
-
33846632630
-
-
Buch v. Amory Mfg. Co., 44 A. 809 (N.H. 1898).
-
Buch v. Amory Mfg. Co., 44 A. 809 (N.H. 1898).
-
-
-
-
65
-
-
33846599157
-
-
155 A.2d 343 (Pa. 1959).
-
155 A.2d 343 (Pa. 1959).
-
-
-
-
66
-
-
33846637139
-
-
Another famous troubling application of the rescue rule is Osterlind v. Hill, 160 N.E. 301 (Mass. 1928), in which the defendant rented a canoe to an intoxicated victim, then sat on the dock, equipped with a boat and rope, and watched the victim drown.
-
Another famous troubling application of the rescue rule is Osterlind v. Hill, 160 N.E. 301 (Mass. 1928), in which the defendant rented a canoe to an intoxicated victim, then sat on the dock, equipped with a boat and rope, and watched the victim drown.
-
-
-
-
67
-
-
33846572643
-
-
If the actor's activity imposes a much greater external cost than external benefit, a duty of care is socially desirable too. But in that case, strict liability is also desirable in order to suppress the activity. For this reason, I describe the reciprocal exchange case as a necessary or minimum condition for the imposition of a duty of care.
-
If the actor's activity imposes a much greater external cost than external benefit, a duty of care is socially desirable too. But in that case, strict liability is also desirable in order to suppress the activity. For this reason, I describe the reciprocal exchange case as a necessary or minimum condition for the imposition of a duty of care.
-
-
-
-
68
-
-
33846610841
-
-
19
-
19 Cal. 4th 925 (1998).
-
(1998)
, vol.4 th
, Issue.925
-
-
Cal1
-
69
-
-
33846640380
-
-
See, e.g, N.Y.S, Sup. Ct
-
See, e.g., Zelenko v. Gimbel Bros., 287 N.Y.S. 134 (Sup. Ct. 1935).
-
(1935)
Gimbel Bros
, vol.287
, pp. 134
-
-
Zelenko1
-
70
-
-
84937317141
-
Res Ipsa Loquitur and Compliance Error, 142
-
See
-
See Mark F. Grady, Res Ipsa Loquitur and Compliance Error, 142 U. Pa. L. Rev. 887, 909-12 (1994).
-
(1994)
U. Pa. L. Rev
, vol.887
, pp. 909-912
-
-
Grady, M.F.1
-
71
-
-
0006850827
-
In Defense of Caveat Emptor, 38
-
See
-
See James M. Buchanan, In Defense of Caveat Emptor, 38 U. Chi. L. Rev. 64 (1970).
-
(1970)
U. Chi. L. Rev
, vol.64
-
-
Buchanan, J.M.1
-
72
-
-
33846613516
-
-
461 P.2d 145 (Kan. 1969).
-
461 P.2d 145 (Kan. 1969).
-
-
-
-
73
-
-
33846634461
-
-
Id. at 146
-
Id. at 146.
-
-
-
-
74
-
-
33846603007
-
-
569 N.E.2d 637 (Ind. 1991).
-
569 N.E.2d 637 (Ind. 1991).
-
-
-
-
75
-
-
33846623131
-
-
Richard Epstein, Cases and Materials on Torts 582 (7th ed. 2000)
-
Richard Epstein, Cases and Materials on Torts 582 (7th ed. 2000)
-
-
-
-
76
-
-
33846642908
-
Ross, 308
-
N.H. 1973, citi
-
(citing Sargent v. Ross, 308 A.2d 528, 531 (N.H. 1973)).
-
A.2d
, vol.528
, pp. 531
-
-
ng Sargent1
-
77
-
-
33846620430
-
-
Point B in Figure 1 assumes there are insubstantial externalized risks and benefits, while point A assumes there are no externalized risks or benefits. Either would fit as a description of this case.
-
Point B in Figure 1 assumes there are insubstantial externalized risks and benefits, while point A assumes there are no externalized risks or benefits. Either would fit as a description of this case.
-
-
-
-
78
-
-
33846617114
-
-
439 F.2d 477 (D.C. Cir. 1970).
-
439 F.2d 477 (D.C. Cir. 1970).
-
-
-
-
79
-
-
33846582221
-
-
Id. at 481
-
Id. at 481.
-
-
-
-
80
-
-
0043040771
-
A Theory of Minimum Contract Terms, with Implications for Labor Law, 74
-
For a more general statement of this contracting problem, see
-
For a more general statement of this contracting problem, see Keith N. Hylton, A Theory of Minimum Contract Terms, with Implications for Labor Law, 74 Tex. L. Rev. 1742, 1756-63 (1996).
-
(1996)
Tex. L. Rev
, vol.1742
, pp. 1756-1763
-
-
Hylton, K.N.1
-
81
-
-
33846570748
-
-
Early behavioral experiments by B.F. Skinner suggested that subjects learn the connection between action and reward (or punishment) through repeated interaction. B.F. Skinner, Science and Human Behavior (1953). Crime is an example of a punishment that occurs randomly and infrequently in response to failures to guard against it. Potential victims are unlikely to accurately estimate, or act as if they had accurately estimated, the likelihood of crime occurring.
-
Early behavioral experiments by B.F. Skinner suggested that subjects learn the connection between action and reward (or punishment) through repeated interaction. B.F. Skinner, Science and Human Behavior (1953). Crime is an example of a punishment that occurs randomly and infrequently in response to failures to guard against it. Potential victims are unlikely to accurately estimate, or act as if they had accurately estimated, the likelihood of crime occurring.
-
-
-
-
82
-
-
33846605372
-
-
162 N.E. 99 (N.Y. 1928).
-
162 N.E. 99 (N.Y. 1928).
-
-
-
-
83
-
-
33846646310
-
-
See Hylton, supra note 12
-
See Hylton, supra note 12.
-
-
-
-
84
-
-
33846647293
-
-
275 U.S. 303 1927
-
275 U.S. 303 (1927).
-
-
-
-
86
-
-
0002692296
-
Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99
-
See
-
See Ian Ayres and Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87 (1989);
-
(1989)
Yale L.J
, vol.87
-
-
Ayres, I.1
Gertner, R.2
-
87
-
-
0000949337
-
Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale, 7
-
Lucian Ayre Bebchuk and Steven Shavell, Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale, 7 J.L. Econ. & Org. 284 (1991).
-
(1991)
J.L. Econ. & Org
, vol.284
-
-
Ayre Bebchuk, L.1
Shavell, S.2
-
88
-
-
33846587748
-
-
159 N.E. 896 (N.Y. 1928).
-
159 N.E. 896 (N.Y. 1928).
-
-
-
-
89
-
-
33846599608
-
-
The Restatement (Second) of Torts § 324A provides, One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts § 324A (1964).
-
The Restatement (Second) of Torts § 324A provides, One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts § 324A (1964).
-
-
-
-
90
-
-
33846619971
-
-
For an interesting duty case raising similar market-allocation issues, see Great Central Insurance Co. v. Insurance Services Office, Inc, 74 F.3d 778 7th Cir. 1996, In Great Central Insurance, then-Chief Judge Posner wrote the following: If a person injures another, through culpable conduct such as negligence, why should not the innocent victim be able to shift his loss to the culpable injurer? There is no altogether satisfactory answer to this question, but it is obvious that the law recoils from the full implications of it, Considerations of policy, have persuaded the courts of all states to place limits on the scope of tort liability through the concept of duty. The same considerations are in play here, To subject [the defendant] to unlimited liability for the consequence of, mistakes might be to jeopardize [the defendant's] existence or make [him] unduly timid about proposing less than astronomical rates
-
For an interesting duty case raising similar market-allocation issues, see Great Central Insurance Co. v. Insurance Services Office, Inc., 74 F.3d 778 (7th Cir. 1996). In Great Central Insurance, then-Chief Judge Posner wrote the following: If a person injures another . . . through culpable conduct such as negligence, why should not the innocent victim be able to shift his loss to the culpable injurer? There is no altogether satisfactory answer to this question, but it is obvious that the law recoils from the full implications of it. . . . [Considerations of policy . . . have persuaded the courts of all states to place limits on the scope of tort liability through the concept of duty. The same considerations are in play here. . . . To subject [the defendant] to unlimited liability for the consequence of . . . mistakes might be to jeopardize [the defendant's] existence or make [him] unduly timid about proposing less than astronomical rates . . . .
-
-
-
-
91
-
-
33846619972
-
-
Id. at 785
-
Id. at 785.
-
-
-
|