Duty wars

Southern California Law Review

Volumn 81, Issue 4, 2008, Pages 671-733

  Cardi, W Jonathan ^a   Green, Michael D ^b  

^a UNIVERSITY OF KENTUCKY   (United States)

^b WAKE FOREST UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 48949106915     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (375)

1. E.g., Widlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967, 968 (Ill. 1990) (addressing a situation in which defendant's employee, delirious from oxygen deprivation after a workplace injury, bit off a portion of plaintiff nurse's finger, the court stated a basic duty rule: "[i]t is well settled that every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons").
2. See id. at 968-70 (holding, nonetheless, that defendant, the employer of the patient, owed no duty to plaintiff nurse after a lengthy analysis of foreseeability, relationship between the parties, public policy, and factors that inform Learned Hand's reasonableness formula, B < PL).
3. E.g., John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 VAND. L. REV. 657, 736 (2001) [hereinafter Goldberg & Zipursky, Place of Duty] ("The Restatement (Third) of Torts: General Principles has studiously avoided the concept of duty and the language expressing it. In doing so, it has disempowered itself from restating our actual law . . . .").
4. Dilan A. Esper & Gregory C. Keating, Abusing "Duty," 79 S. CAL. L. REV. 265 (2006);
5. John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other "Quaint" Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. CAL. L. REV. 329 (2006) [hereinafter Goldberg & Zipursky, Shielding Duty].
6. One of us (Green) is an interested party in the Third Restatement, having served as a co-reporter for the now-titled Restatement (Third) of Torts: Liability for Physical and Emotional Harm since 2000. The duty provisions under discussion were originally drafted by Gary Schwartz, who was the original and sole reporter for this portion of the Third Restatement until he was joined by Green in 2000. Since Schwartz's untimely death on July 25, 2001, Green has carried forward Schwartz's drafting of the duty provisions in this Restatement, along with now-President Bill Powers, who joined as a co-reporter in 2001. Harvey Perlman, who briefly served as a co-reporter in 1999-2000, drafted provisions that have not been carried forward and are thus no longer a part of the current Restatement and which, consequently, we do not address in this Article.
7. See Goldberg & Zipursky, Shielding Duty, supra note 4, at 333 (claiming that the Third Restatement "impose[s] California's brand of instrumentalism on the entire nation's negligence law"). All instrumental accounts of tort law (or duty) are not the same, and the Third Restatement is quietly agnostic as to whether the source of the obligation in tort law is some brand of instrumentalism, moral-justice concerns, other justifications, or a combination of some or all of these reasons.
8. Hilyar v. Union Ice Co., 286 P.2d 21 (Cal. 1955).
9. Warner v. Santa Catalina Island Co., 282 P.2d 12 (Cal. 1955). Although neither Hilyar nor Warner limited its statement of the default duty to physical harm, such a limit was implicit in those decisions.
10. Heaven v. Pender, (1883) 11 Q.B.D. 503, 509 (U.K.). Holmes articulated the same principle in his well-known dictum that tort law imposes a duty of all the world to all the world. The Theory of Torts, 7 AM. L. REV. 652, 662 (1873) (author not named but widely believed to be Oliver Wendell Holmes
11. (2 MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES 81-82 (1963)).
12. Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) (appeal taken from Scot.) (U.K.).
13. Hilyar, 286 P.2d at 24 ("All persons are required to use ordinary care to prevent others being injured as the result of their conduct . . . ."); Warner, 282 P.2d at 16 ("All persons are required to use ordinary care to prevent others being injured as the result of their acts . . . .").
14. See DAN B. DOBBS, THE LAW OF TORTS § 111, at 260-63 (2000).
15. See John B. v. Superior Court, 137 P.3d 153, 160 (Cal. 2006).
16. Biakanja v. Irving, 320 P.2d 16 (Cal. 1958).
17. Id. at 17.
18. See id. at 18.
19. Id. at 19.
20. Contained in the first edition of his treatise, and carried forward in each subsequent edition, is Prosser's precept that "'duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 31, at 180 (1st ed. 1941). The caselaw is replete with citations to this statement.
21. It was christened as such in Dillon v. Legg, 441 P.2d 912, 919 (Cal. 1968) ("In the absence of 'overriding policy considerations . . . foreseeability of risk [is] of . . . primary importance in establishing the element of duty.'" (quoting Grafton v. Mollica, 42 Cal. Rptr. 306, 310 (Ct. App. 1965)).
22. Id. Dillon, consistent with its elevation of foreseeability to primacy status, employed it as the basis for the scope of liability for bystander emotional harm; the limits of liability for causing a bystander emotional harm would be the court's assessment, on the facts of the case, whether a person of ordinary sensibilities would suffer serious emotional harm. The foreseeability standard turned out to be a calamity, requiring restructuring of the law to impose more rigid and nonforeseeability-based rules to limit recovery in bystander cases. See Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989);
23. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM ch. 8 (Tentative Draft No. 5, 2007).
24. Dillon, 441 P.2d at 916 (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 53, at 332-33 (3d ed. 1964)).
25. Id. at 920.
26. Rowland v. Christian, 443 P.2d 561, 564-65 (Cal. 1968).
27. Id. at 564.
28. Id.
29. Id. at 564-68.
30. About half the states have adopted some form of a unitary standard. For the latest compilation of where states stand, see RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 51 reporters' note to cmt. a (Council Draft No. 7, 2007).
31. Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976).
32. Id. at 340.
33. Id. at 341.
34. Id.
35. Id.
36. Id. at 342.
37. See id. at 343.
38. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 37 (Proposed Final Draft No. 1, 2005).
39. See id. §§ 38-44. A determination that a "special relationship" exists simply reflects a conclusion that, based on the factual context, an affirmative duty should be imposed.
40. Tarasoff, 551 P.2d at 343.
41. California duty doctrine remains largely where we found it in Tarasoff some thirty years ago. Just last year, the California Supreme Court declared that "[i]n California, the general rule is that all persons have a duty 'to use ordinary care to prevent others being injured as the result of their conduct . . . .'" John B. v. Superior Court, 137 P.3d 153, 160 (Cal. 2006) (quoting Rowland v. Christian, 443 P.2d 561, 564 (Cal. 1968)). The court also reiterated that the rare exceptions to this fundamental principle were to be based on policy and informed by the Biakanja factors. Id. at 161-62.
42. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(a) & reporters' note to cmt. a (Proposed Final Draft No. 1, 2005).
43. See MARC A. FRANKLIN, ROBERT L. RABIN & MICHAEL D. GREEN, TORT LAW AND ALTERNATIVES 264 (8th ed. 2006).
44. DOBBS, supra note 12, § 314, at 853.
45. See Carl J. Circo, Placing the Commercial and Economic Loss Problem in the Construction Industry Context, 41 J. MARSHALL L. REV. (forthcoming) (manuscript at 15, on file with authors) ("Contemporary tort cases frequently apply the Biakanja factors when the question is whether liability should extend to a situation of first impression.").
46. See, e.g., Sharon P. v. Arman, Ltd., 989 P.2d 121, 126-30 (Cal. 1999) (holding that owners of a parking garage did not have a duty to prevent attack on plaintiff). Other courts may employ a somewhat different set of factors, although foreseeability tends to be universal. See, e.g., Bus. to Bus. Mkts., Inc. v. Zurich Specialties London Ltd., 37 Cal. Rptr. 3d 295, 299-300 (Ct. App. 2005) ("When the third person's injuries arise from the defendant's rendering of professional services, several additional factors beyond the Biakanja factors come to mind in our deciding whether to find a duty[:] . . . the degree to which clients and third parties ordinarily relinquish control for decisionmaking to the professiona[,] . . . the degree to which the defendant works under professional standards established and maintained by the profession[,] . . . the defendant's ability to spread its costs by raising its fees or buying liability insurance[,] . . . [and] the expected and customary reliance by clients and others on the skillfulness and expertise of the defendant's profession."). Rowland also considered: "the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." Rowland v. Christian, 443 P.2d 561, 564 (Cal. 1968).
47. See, e.g., Langle v. Kurkul, 510 A.2d 1301, 1306 (Vt. 1986) (holding that social host owes no duty unless host "furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile . . . ."); Nivens v. 7-11 Hoagy's Corner, 920 P.2d 241 (Wash. Ct. App. 1996) (holding that the store operator owed no duty to invitee customers because reasonable store operator would not have foreseen danger posed by loitering teenagers in parking lot), aff'd, 943 P.2d 286 (Wash. 1997).
48. This is a matter the California Supreme Court appreciated five years after Biakanja, in Amaya v. Home Ice, Fuel & Supply Co., 379 P.2d 513 (Cal. 1963). Amaya was a suit by a bystander who suffered emotional harm when her child was physically injured in an automobile accident. Recognizing that foreseeability would result in a conclusion that a duty to the mother existed, but not yet ready to accept bystander claims for emotional harm, the court constricted the role of foreseeability in determining duty. See id. at 521-24. As John Fleming has observed, while foreseeability is a necessary condition for liability, it is not sufficient. JOHN G. FLEMING, THE LAW OF TORTS 131 (6th ed. 1983). While we agree that foreseeability is a necessary condition for liability, we do not believe that it should play any role in the duty determination. See infra text accompanying notes 268-92.
49. That title was a result of several currents: (1) disagreements within the ALI about whether it should be preparing a "top down" Restatement containing the essential principles of tort law applicable to all tort claims or a "bottom up" building block Restatement, characteristic of earlier Restatements; (2) Schwartz's desire to limit the scope of the project, so as to avoid addressing details such as land possessor duties; and (3) an intent to signal that the Third Restatement would not take the form of the earlier Restatements with numerous highly specific rules of law (the chapter on land possessors' duties in the Second Restatement comprises fifty-six sections). The project's title was subsequently changed to "Liability for Physical Harm (Basic Principles)," and with the addition of chapters on emotional harm and land possessor duties, has acquired the title "Liability for Physical and Emotional Harm," which will be its published title.
50. Compare RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES xxi (Discussion Draft 1999) (explaining the scope of the project and that it constituted "the core of problems facing modern tort law"),
51. with RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM xli (Proposed Final Draft No. 1, 2005) (describing a similar scope). That Restatement project also addressed the different culpability states, including intent and recklessness. The former is not and the latter is rarely implicated in a tort suit for accidental injury.
52. Some time around 2004, the scope ofthat Restatement project was expanded to address land possessor duties (which had been omitted from the scope of the original project) and liability for emotional harm.
53. See FRANKLIN ET AL., supra note 40, at 2.
54. Gary T. Schwartz, Prospectus for Restatement (Third) of Torts: Basic Principles, Report to the American Law Institute 5 (Oct. 17, 1995); RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES xxi, § 3 cmt. a (Discussion Draft 1999).
55. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES xxi (Discussion Draft 1999) ("Subsequent parts of the project are expected to address affirmative duty doctrines . . . .").
56. Several statements by Goldberg and Zipursky fail to recognize this fact. See Goldberg & Zipursky, Place of Duty, supra note 3, at 663 ("[A] sound restatement of negligence cannot simply neglect duty."); id. at 669 (stating that "Sections 3 and 6 [are disabled] from fairly restating whole areas of negligence case law"). After the latter quotation, Goldberg and Zipursky continue with a list of tort claims for which sections 3 and 6 are inadequate, including, for example, suits for pure economic harm. Id. at 669. Not one of the tort claims listed by Goldberg & Zipursky is within the scope of the Discussion Draft, on which they were commenting. So yes, sections 3 and 6 do not restate law that they do not purport to restate.
57. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 3 (Discussion Draft 1999). "Subject to liability" is a term of art employed in torts Restatements to clarify that the condition addressed in a black letter provision is a necessary, but not sufficient, basis for liability.
58. See RESTATEMENT (SECOND) OF TORTS § 5 (1965).
59. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 3 cmt. a (Discussion Draft 1999).
60. Id. § 6.
61. Id. § 6 cmt. a.
62. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 6 (Proposed Final Draft No. 1, 2005).
63. Id. § 7(a).
64. Id. § 7(b).
65. For example, the commentary identifies conflicts with other areas of law, such as contract law, as the basis for limiting duty when only economic harm is suffered. Similarly, when a tort is based on purely representational conduct, protecting First Amendment concerns could justify limiting duty regardless of whether the First Amendment would require such as a constitutional matter. See id. § 7 cmt. d.
66. Id. § 7 cmt. j.
67. See Esper & Keating, supra note 4; Goldberg & Zipursky, Place of Duty, supra note 3.
68. Esper & Keating, supra note 4, at 282 (emphasis omitted).
69. See id. at 282, 325.
70. See id. at 325-26.
71. Id. at 273.
72. Id.
73. Id. at 270.
74. Id. at 282.
75. See RESTATEMENT (SECOND) OF TORTS § 328B (1965); DOBBS, supra note 12, § 149, at 355.
76. See supra text accompanying note 63.
77. See Esper & Keating, supra note 4, at 326 ("The fundamental problem is that courts are distorting the role of duty in negligence law by proceeding as though the existence of obligation in tort is always an open question. Duty cannot be an eternally open question in this way, and duty decisions must be made categorically, not on a case-by-case basis.").
78. See id. at 279-82.
79. See infra Part V.D (addressing the proper role for foreseeability).
80. See Esper & Keating, supra note 4, at 289-328.
81. Id. at 327.
82. Id. at 296-300, 323-24.
83. See id. at 289-90. E&K point to two doctrinal manifestations of these problems: California's expansion of the assumption of risk doctrine, and its reinvigoration of the categorical approach to landowner duties previously abandoned by the California Supreme Court in Rowland v. Christian. Id. at 290-305, 313-21. Each development, according to E&K, evidences a contraction of the realm of tort - the expansion of assumption of risk acting in favor of the freedom to contract, and the resurrection of categorical landowner duties representing the increased influence of property interests. Id. at 290-305, 318-21. E&K also argue that these developments unduly impose on the province of the jury in deciding the element of breach. Id. at 296-300, 323-24.
84. Id. at 323.
85. Id. at 327.
86. Id.
87. Id.
88. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524 (2005) (arguing that citizens have a constitutional right to public redress for private wrongs).
89. See also Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 739 (2003) ("[T]he very question of whether the defendant will be held liable is a question of whether the plaintiff is genuinely entitled to an avenue of recourse - to an action - against the defendant.").
90. John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 FORDHAM L. REV. 1563, 1581 (2006) [hereinafter Goldberg & Zipursky, Seeing Tort Law].
91. See generally John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733 (1998) [hereinafter Goldberg & Zipursky, Moral] (questioning the instrumentalist explanation of negligence).
92. Id. at 1828.
93. Id. at 1744.
94. Id. at 1828.
95. Id. at 1829.
96. Goldberg & Zipursky, Place of Duty, supra note 3, at 685.
97. Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928).
98. Id.
99. See Goldberg & Zipursky, Moral, supra note 85, at 1830-37 (explaining the dependence of duty analysis on the relationship between the parties).
100. See id. at 1822.
101. See id. at 1820.
102. See id. at 1838-39.
103. See Goldberg & Zipursky, Place of Duty, supra note 3, at 727-28 ("[C]ourts predicate their recognition of a duty of care in part on the ground that the defendants as a class are uniquely well-positioned to foresee the risk of injury to members of the plaintiff class. Thus, the obligation question turns in part on the degree to which a type of defendant can foresee a certain kind of harm.").
104. Goldberg & Zipursky, Moral, supra note 85, at 1838.
105. Goldberg & Zipursky, Shielding Duty, supra note 4, at 334.
106. Id. at 340.
107. Id. at 333. For example, G&Z assert that the doctrine of assumption of risk is meant to give legal substance to the idea that plaintiffs are not entitled to recover when injured pursuant to risks that they subjectively understood and voluntarily chose to undertake. Id. at 344. According to G&Z, by treating assumption of risk as a no-duty rule, the California courts have lost the contours of this narrowly applicable defense in favor of California's vague, multifactor duty inquiry. See id. at 351. G&Z make similar claims about the California courts' abandonment of a separate category for trespassers in landowner liability cases. Id. at 351-59.
108. Id. at 361.
109. See discussion supra Part IV.A.
110. Goldberg & Zipursky, Shielding Duty, supra note 4, at 360-61.
111. Id. at 361. It is not surprising, in light of their Fordham Law Review article, Goldberg & Zipursky, Seeing Tort Law, supra note 84, that G&Z's argument against E&K embraces an important facet of H.L.A. Hart's position in the Hart-Fuller debates. There, Hart took the position that firm adherence to rules would serve as the best defense against shifting political trends.
112. See generally H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).
113. For Fuller's side of the argument, see Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630 (1958).
114. In the Southern California Law Review, for example, G&Z accuse the Third Restatement of imposing "California's brand of instrumentalism on the entire nation's negligence law," and they criticize the Third Restatement reporters' "dogmatic insistence on collapsing questions of duty into a blunderbuss policy inquiry as to the propriety of permitting juries to impose liability." Goldberg & Zipursky, Shielding Duty, supra note 4, at 333.
115. See also Goldberg & Zipursky, Place of Duty, supra note 3, at 663 (describing the initial draft of the Third Restatement as an attempt to "re-describe the law of negligence in terms of unreasonableness, causation, and injury, with duty serving merely as a question-begging label for the absence of a policy-based exemption").
116. See Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1571 (ascribing to these scholars the idea that duty is simply a liability rule that is "most likely to achieve desired results such as deterrence of antisocial conduct or compensation of the injured").
117. See also Goldberg & Zipursky, Moral, supra note 85, at 1752-61 (tracing "duty-skepticism" to the work of Holmes and Presser).
118. Goldberg & Zipursky, Moral, supra note 85, at 1764.
119. See Goldberg & Zipursky, Place of Duty, supra note 3, at 665-69 (discussing sections 3 and 6 of RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES (Discussion Draft 1999)).
120. See supra notes 57-61 and accompanying text.
121. See Goldberg & Zipursky, Shielding Duty, supra note 4, at 334.
122. See Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1584.
123. See Goldberg & Zipursky, Moral, supra note 85, at 1831-32.
124. See Goldberg & Zipursky, Place of Duty, supra note 3, at 669-73.
125. Goldberg & Zipursky, Place of Duty, supra note 3, at 736 ("The Restatement (Third) of Torts: General Principles has studiously avoided the concept of duty and the language expressing it. In doing so, it has disempowered itself from restating our actual law . . . . Yet our current Reporters, Professors Schwartz and Perlman, have calmly, quietly, and professionally proposed to do something none of their ancestors were willing to do - wipe the concept of duty right out of the law of negligence."); id. at 698 ("[The Third Restatement] distort[s] the law of negligence . . . ."). We find it curious that while criticizing the Third Restatement for failing to restate the law, G&Z at the same time criticize it for stating obvious or routine matters such as that liability may exist for facilitating another's wrongdoing that causes harm, or that failing to warn of dangers may constitute negligence. See id. at 681 (characterizing the Third Restatement's treatment of failure to warn as a form of unreasonable conduct as "banal"). See also id. at 682 (stating that Discussion Draft explanation of negligently facilitating another's conduct would "only make[] sense" if courts routinely held otherwise).
126. See Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1564 ("[O]verwhelmingly, modern mainstream American tort scholarship is 'Holmesian' in embracing duty skepticism and the implications of that skepticism.").
127. Goldberg & Zipursky, Place of Duty, supra note 3, at 662.
128. Id. at 673-74. G&Z also find support for their position that duty is central to negligence in a quotation from Presser that duty "is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant's responsibility may be limited, has been devised." PROSSER, supra note 18, § 31, at 180 (footnote omitted). They believe this quotation is contrary to the Third Restatement's treatment of duty. Goldberg & Zipursky, Place of Duty, supra note 3, at 674. That is not the case, we contend, with regard to the default duty of reasonable care the Third Restatement adopts. Importantly, right after the quotation cited by G&Z, Presser quotes both Heaven v. Pender, (1883) 11 Q.B.D. 503, 509 (U.K.), and Donoghue v. Stevenson, [1932] A.C. 562, 580 (H.L.) (appeal taken from Scot.) (U.K.), the two classic British cases that express a duty of care owed by all to those foreseeably put at risk by the actor's conduct. PROSSER, supra note 18, § 31, at 180-81. Thus, although Presser recognized that duty is an important (if ultimately liability-limiting) part of negligence law, he also recognized that in the typical case, a court may assume that a duty exists without requiring further analysis.
129. Goldberg & Zipursky, Place of Duty, supra note 3, at 674.
130. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 3 (Discussion Draft 1999) ("An actor is subject to liability for conduct that is a legal cause of physical harm.").
131. RESTATEMENT (SECOND) OF TORTS § 281 (1965).
132. And therefore overlaps with the prior requirement. Given, however, the smorgasbord-like quality of the Second Amendment with regard to proximate cause, this overlap becomes less surprising.
133. RESTATEMENT (SECOND) OF TORTS § 281 (1965). G&Z argue that section 281 contains no policy-based exemption from duty. Goldberg & Zipursky, Place of Duty, supra note 3, at 673. Of course, that claim does not address the absence of duty from section 281. And, as they should recognize, both the first and second Restatements were drafted in the formalist style that omitted policy discussions in explaining the bases for the rules adopted.
134. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 676 (2d ed. 1985). Realists, however, long ago changed that, and the language of the law is suffused with policy. And although the earlier Restatements did not include policy language, they had exemptions from liability, such as for emotional harm and economic loss, which can be understood as policy driven, and modifications of the ordinary duty of care, such as strict liability for manufacturing defects, that are explicitly policy driven.
135. See, e.g., RESTATEMENT (SECOND) OF TORTS § 436A (1965).
136. Goldberg & Zipursky, Place of Duty, supra note 3, at 673.
137. RESTATEMENT OF TORTS § 1 (1934);
138. RESTATEMENT (SECOND) OF TORTS § 1 (1965).
139. RESTATEMENT OF TORTS § 1 cmt. d (1934);
140. RESTATEMENT (SECOND) OF TORTS § 1 cmt. d (1965).
141. RESTATEMENT OF TORTS § 1 cmt. d (1934);
142. RESTATEMENT (SECOND) OF TORTS § 1 cmt. d (1965).
143. See RESTATEMENT (SECOND) OF TORTS § 4 (1965).
144. Like the Second Restatement, the First Restatement also contained a definition of duty, which was also omitted from the list of elements of a negligence claim in section 281. RESTATEMENT OF TORTS § 4 (1934).
145. RESTATEMENT (SECOND) OF TORTS § 302 cmt. a (1965).
146. RESTATEMENT (SECOND) OF TORTS ch. 12 scope note to topic 4 (1965).
147. See Goldberg & Zipursky, Place of Duty, supra note 3, at 673-74. Although G&Z have not reiterated, in published work, their concerns with regard to the Proposed Final Draft, they have voiced their concerns at ALI meetings and in many conversations with the authors of this Article.
148. RESTATEMENT (SECOND) OF TORTS § 302 cmt. a (1965).
149. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 6 cmt. a (Discussion Draft 1999).
150. For a listing of cases from jurisdictions that make just such a statement that there is ordinarily a duty of reasonable care, see RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 reporters' note to cmt. a (Proposed Final Draft No. 1, 2005). Davis v. Witt, 851 So. 2d 1119, 1128 (La. 2003) ("Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like circumstances."), is a random example of the cases contained therein.
151. RESTATEMENT (SECOND) OF TORTS ch. 12 scope note to topic 4 (1965).
152. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(a) (Proposed Final Draft No. 1, 2005).
153. It is true, as G&Z point out, that section 328A of the Second Restatement states that it is the plaintiff's burden to prove the facts that give rise to a legal duty by the defendant. RESTATEMENT (SECOND) OF TORTS § 328A (1965).
154. See also Goldberg & Zipursky, Place of Duty, supra note 3, at 673-74. Yet that section, which, with its partner section 328B, addresses the respective functions of judge and jury, is an odd place to locate a previously unidentified element of a claim, undermining G&Z's position. Comment c to section 328B further reveals that it is not addressing the default duty of reasonable care for risks created by one's conduct, but those unusual situations in which the ordinary duty of reasonable care is modified.
155. RESTATEMENT (SECOND) OF TORTS § 328B cmt. c (1965).
156. Other uses are in connection with narrow situations, such as when a landowner attempts to delegate a duty owed to independent contractors. See, e.g., RESTATEMENT (SECOND) OF TORTS § 411 (1965).
157. Goldberg & Zipursky, Place of Duty, supra note 3, at 674.
158. See supra notes 132-35 and accompanying text.
159. See id.
160. Goldberg & Zipursky, Moral, supra note 85, at 1832.
161. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES xxi (Discussion Draft 1999).
162. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 37 (Proposed Final Draft No. 1, 2005).
163. In 2005, the ALI decided to extend the original scope of this Restatement project to include emotional harm and land possessor duties. Neither of those subjects is contained in the Discussion Draft or Proposed Final Draft.
164. Goldberg & Zipursky, Place of Duty, supra note 3, at 674.
165. Id. at 678-80.
166. Parmely v. Hildebrand, 603 N.W.2d 713, 714-18 (S.D. 1999).
167. Hopping v. Coll. Block Partners, 599 N.W.2d 703, 704-05 (Iowa 1999).
168. It is also worth noting that Hopping is likely best explained by a distinction, present in landowner cases, based on the defendant's creation of the risk. In Frantz v. Knights of Columbus, 205 N.W.2d 705 (Iowa 1973), a case cited in Hopping, the court required notice of the condition before imposing a duty, distinguishing a case in which "the possessor of the premises involved created the alleged dangerous condition by its own activity as in Hanson where the condition complained of was created by the possessor's activity in piling snow on the walkway." Id. at 712. In light of that quotation, consider the following language from Hopping: "In the present case, the district court expressly found '[d]efendants College Block Partners and Bushnell's Turtle had a . . . responsibility because it was the parapet on their building that caused the condition.'" Hopping, 599 N.W.2d at 705 (alteration in original). Mussivand v. David, 544 N.E.2d 265 (Ohio 1989), the third case cited by G&Z, fits more squarely within the subject matter governed by the relevant Third Restatement sections. In that case, the plaintiff sued his wife's adulterous lover for having passed a sexually-transmitted disease to his wife, which she then passed to the plaintiff. Id. at 266-67. The court readily found that a duty exists on the part of someone with an STD to abstain from sex, or at least to warn one's partner before engaging in sex. Id. at 270. The court, however, saw,the issue to be whether the defendant owed a duty to his partner's husband. Id. at 272. The court proceeded to determine that because harm to the partner's husband was foreseeable, the defendant owed him a duty. Id. By determining foreseeability of the plaintiff to be a question of duty, the Mussivand court's analysis does indeed conflict with the Third Restatement's provisions. The Third Restatement transparently addresses this issue and adopts a rule that is also present in the case law - that foreseeability of plaintiff is appropriately considered as part of proximate cause, not duty. For further discussion, see infra notes 259-80 and accompanying text.
169. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM ch. 9 (Council Draft No. 7, 2007).
170. See RESTATEMENT (THIRD) OF TORTS: ECONOMIC TORTS AND RELATED WRONGS (Council Draft No. 2, 2007).
171. Similarly, by criticizing the Discussion Draft for failure to employ duty as a limit on affirmative obligations, see Goldberg & Zipursky, Place of Duty, supra note 3, at 665-66, G&Z simply miss the explanation in the "Reporter's Introductory Note" stating that later provisions would address that subject.
172. See RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES xxi (Discussion Draft 1999) ("Subsequent parts of the project are expected to address affirmative duty doctrines . . . .").
173. Goldberg & Zipursky, Place of Duty, supra note 3, at 660-62. See also id. at 662 (stating there is "no justification for [Schwartz and Perlman's] decision to . . . depart[] from standard judicial usage"); id. ("drafts of the Restatement (Third) do not capture the law"); id. at 669, 673-74 (stating that the Second Restatement and Presser are contrary to the position of the Discussion Draft); id. at 678-80 (providing examples of cases to demonstrate the centrality of duty to negligence law); id. at 663 (discussing the "wholesale revision embodied in the current draft"); id. at 680 (stating that it is "not possible without duty to give a fair restatement of the law of 'accidental personal injury and property damage.'") (internal citation omitted);
174. Goldberg & Zipursky, Shielding Duty, supra note 4, at 333 (asserting that the Discussion Draft imposes "California's brand of instrumentalism on the entire nation's negligence law" and "does not follow the usage of the courts").
175. Goldberg & Zipursky, Place of Duty, supra note 3, at 658 n.1.
176. See RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 6 cmt. a (Discussion Draft 1999).
177. Id.
178. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM (forthcoming) (manuscript § 7 reporters' note to cmt. a, on file with authors).
179. DOBBS, supra note 12, § 227, at 578 ("Among strangers . . . the default rule is that everyone owes a duty of reasonable care to others to avoid physical harms."); 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS
180. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(a) (Proposed Final Draft No. 1, 2005).
181. Cf. Goldberg & Zipursky, Place of Duty, supra note 3, at 706.
182. Id. 161. See id. at 678 ("[D]uty in the obligation sense often is at issue in straightforward cases involving accidental personal injury or physical damage.") (internal quotations omitted).
183. Esper & Keating, supra note 4, at 267 n.7.
184. Percy H. Winfield, Duty in Tortious Negligence, 34 COLUM. L. REV. 41, 48 (1934). See also id. at 54 ("duty was not then thought of as an essential of liability for inadvertence"). Gary Schwartz's work examining nineteenth century tort cases in California and New Hampshire supports Winfield with regard to early American law: In any event, the general duty issue played almost no encumbering role in nineteenth-century tort law in New Hampshire and California. From the beginning, each state's Court, in cases involving accidents between strangers, routinely granted recoveries on a showing of negligence, without the slightest concern for any problem of duty.
185. Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1765-66 (1981).
186. See Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 HASTINGS L.J. 579, 605-07 (1993)
187. (citing MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977));
188. Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. 151, 151-52 (1946).
189. See also WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 (1975);
190. Paul D. Carrington, The Seventh Amendment: Some Bicentennial Reflections, 1990 U. CHI. LEGAL F. 33, 45 ("[A] risk of aberrant, emotional decisionmaking in tort actions may be to deter investment in activities that are exposed to tort liability. Economic activity of all kinds is a function of social and political stability that facilitates planning; nineteenth-century American law was much concerned with encouraging economic activity.").
191. See Winfield, supra note 163, at 54-56.
192. Vernon Palmer, Why Privity Entered Tort - An Historical Reexamination of Winterbottom v. Wright, 27 AM. J. LEGAL HIST. 85, 86-87 (1983).
193. See Winfield, supra note 163, at 55, 58.
194. See id. It is worth noting that in the products liability project of the Third Restatement, which is predominantly based on liability of a manufacturer for negligence in designing or warning about its products, none of the main liability provisions relies on "duty" as an element of a claim. See, e.g., RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (1998). Likewise, we have no notion of duty for intentional torts causing physical harm, although there is no doubt an obligation to refrain from intentionally causing physical harm to another. This is likely because the notion of obligation in each of these areas of law is presumed and because courts have seen no compelling policy reason to limit this obligation.
195. Winterbottom v. Wright, 10 M. & W. 109, 110, 152 Eng. Rep. 402, 403 (1842).
196. Id. at 116, 152 Eng. Rep. at 405.
197. Id. G&Z cite this reasoning as support for their relationality thesis, discussed infra Part V.C.
198. Id. at 113-14, 152 Eng. Rep. at 404-05. In this respect, Winterbottom was an early version of Strauss v. Belle Realty Co., 482 N.E.2d 34 (1985).
199. Goldberg & Zipursky, Moral, supra note 85, at 1761 n.104.
200. Id. (citing Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA. L. Rev. 925 (1981) [hereinafter Rabin, Historical Development]).
201. Rabin, Historical Development, supra note 174, at 927.
202. See id. at 928.
203. See id. at 933-43.
204. Winfield, supra note 163, at 48-49.
205. European Group on Tort Law, Principles of European Tort Law, in RESEARCH UNIT FOR EUROPEAN TORT LAW, EUROPEAN CENTRE OF TORT AND INSURANCE LAW, UNIFICATION OF TORT LAW: FAULT 369, 372 (Pierre Widmer ed., 2005).
206. See also William L. Prosser, Palsgraf Revisited, 52 MICH. L. REV. 1, 12 (1953) (stating that "the concept [of duty] is unknown to the continental law").
207. See generally W.V.H. ROGERS, WINFIELD & JOLOWICZ ON TORT §§ 5.2-5.4, at 104-08 (16th ed. 2002). Ken Oliphant, who teaches at Bristol University, suggested to one of us that the use of duty in English law is an historical anomaly because juries are no longer routinely used in tort cases, save for defamation cases. Moreover, current English law is in accord with the Third Restatement's default of an ordinary duty of reasonable care subject to exceptions based on principle or policy.
208. See David Howarth, Duty of Care, in THE LAW OF TORT 629, 629 (Ken Oliphant ed., 2d ed. 2007) (suggesting that duty operates in a negative manner to relieve a defendant of negligent conduct based on arguments of "principle" or "policy").
209. Goldberg & Zipursky, Place of Duty, supra note 3, at 706.
210. See, e.g., Widlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967, 968-70 (Ill. 1990) (noting that "[i]t is well settled that every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons," then holding, nonetheless, that the defendant owed no duty to the particular plaintiff after lengthy analysis of foreseeability, relationship between the parties, public policy, and Learned Hand-like factors).
211. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(b) (Proposed Final Draft No. 1, 2005).
212. See Goldberg & Zipursky, Shielding Duty, supra note 4, at 333.
213. Id.
214. See Jake Dear & Edward W. Jessen, "Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. DAVIS L. REV. 683 (2007) (finding the California Supreme Court to be the most influential of all state supreme courts based on the frequency with which its opinions have been adopted by other courts).
215. Rowland v. Christian, 443 P.2d 561 (Cal. 1968).
216. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 51 reporters' note to cmt. a tbl. (Council Draft No. 7, 2007).
217. Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).
218. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 41 reporters' note to cmt. g (Proposed Final Draft No. 1, 2005).
219. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 47 reporters' note to cmt. a (Tentative Draft No. 5, 2007).
220. See Biakanja v. Irving, 320 P.2d 16 (Cal. 1958); 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER, JAMES AND GRAY ON TORTS § 18.5A, at 847-49 (3d ed. 2007).
221. See supra note 156 and accompanying text.
222. See, e.g., Ashburn v. Anne Arundel County, 510 A.2d 1078 (Md. 1986) (employing Biakanja factors to determine if an affirmative duty exists).
223. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(b) (Proposed Final Draft No. 1, 2005).
224. Id. § 7 cmt. a.
225. See id. § 7 cmts. c & j.
226. See infra Parts V.C-E.
227. See supra notes 83-94 and accompanying text.
228. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 312 (1987).
229. See also GUIDO CALABRESI, THE COSTS OF ACCIDENTS 256 (1970) (taking "it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents").
230. See James C. Harris, Comment, Why the September 11th Victim Compensation Fund Proves the Case for a New Zealand-Style Comprehensive Social Insurance Plan in the U.S., 100 N.W. L. REV. 1367, 1373-76 (2006).
231. Goldberg & Zipursky, Shielding Duty, supra note 4, at 334.
232. Goldberg & Zipursky, Moral, supra note 85, at 1744.
233. See supra note 87 and accompanying text. See also Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1572-77 (endorsing H.L.A. Hart's understanding that "a moral duty informs lawyers' and judges' judgments as to whether there ought to be a parallel legal duty").
234. See Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1585-88.
235. Id. at 1586.
236. Goldberg has endorsed a similar approach in his interpretation of Cardozo's judicial analysis: Although in each case Cardozo felt obligated to consider whether his legal analysis would generate results and rules that would promote highly undesirable consequences, Cardozo saw his first task as interpreting and applying the concept of "duty" as he found it in precedent and the basic structure of negligence law. John C.P. Goldberg, The Life of the Law, 51 STAN. L. REV. 1419, 1469 (1999) (book review).
237. We note that the Third Restatement does not endorse any particular theoretical understanding of duty. This Article presents our personal response to G&Z's critique of a document that one of us participated in crafting as a co-reporter and which the other has supported in previous scholarly writings.
238. To say this, given the amorphousness of the concept of community norms, is to leave much unsaid. We could well imagine, for example, that community standards might themselves take into account the social implications of obligations, thereby recognizing the sort of instrumental concerns that we believe are also operative in courts' duty decisions.
239. Yet we should confess that experimental psychology research into jury decision making - conducted both with student and legally-trained subjects - suggests that only a minority - some 15 to 33 percent - took into account deterrence considerations in several hypothetical problems designed to examine this question. See Jonathan Baron & Ilana Ritov, Intuitions About Penalties and Compensation in the Context of Tort Law, 7 J. RISK & UNCERTAINTY 17, 31 (1993) ("Our results suggest that intuitions about punishment and compensation, in the context of tort law, are variable from person to person and are not typically consequentialist").
240. See also Thomas R. Shultz et al., Judgments of Causation, Responsibility, and Punishment in Cases of Harm-doing, 13 CAN. J. BEHAV. SCI. 238, 251 (1981) ("The present results . . . support those philosophers who have defended the use of causal and moral concepts against those who have argued for the abandonment of these concepts in favour of social policy considerations.") (internal citations omitted). This is a step removed from how people think about their moral obligations, but we do not see any compelling reasons why that step would change their thinking about consequentialist matters. G&Z seem to share this suspicion and warn judges against such a practice.
241. See Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1587 ("[I]t is critical that the judge accurately identify and apply the legal norms that she is interpreting and that she not simply assume that she has been delegated the all-things-considered moral question of how to resolve the dispute or class of disputes before her.").
242. Goldberg has in fact made this argument in several conversations with one of the authors of this Article.
243. This argument would not fly not only because it is descriptively inaccurate, but also because the list of policy considerations that G&Z deem acceptable are broad enough to encompass the ones they seek to exclude.
244. See Goldberg & Zipursky, Place of Duty, supra note 3, at 669-72 (describing types of tort cases embodying the concept of duty as an obligation).
245. Goldberg & Zipursky, Seeing Tort Law, supra note 84, at 1565.
246. The following is a sample of the resulting cases, with parentheticals illustrating that each court considers instrumental considerations in its duty analysis: Grafitti-Valenzuela ex rel. Grafitti v. City of Phoenix, 167 P.3d 711, 714 (Ariz. Ct. App. 2007) ("Public policy may support the recognition of a duty of care."); Bartley v. Sweetser, 890 S.W.2d 250, 252 (Ark. 1994) (refusing to impose on a landlord a duty to protect tenants from crime due to policy reasons such as "the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector"); Shin v. Ahn, 165 P.3d 581, 587 (Cal. 2007) (holding that the primary assumption of risk doctrine applies to golf, and therefore, that the defendant did not owe a duty of ordinary care, in part because "'[h]olding [golf] participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport'") (internal citation omitted); Century Sur. Co. v. Crosby Ins., Inc., 21 Cal. Rptr. 3d 115, 125 (Ct. App. 2004) (imposing a duty on insurance brokers for misrepresentations in insurance applications in part because to do so "would act as a deterrent in preventing future harm"); Monk v. Temple George Assocs., 869 A.2d 179, 187 (Conn. 2005) (recognizing that analysis of duty necessarily includes public policy considerations such as "'(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions'") (internal citation omitted); Trenwick Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d 168, 218 (Del. Ch. 2006) (refusing to impose a duty on the part of the directors, officers, and advisors of a litigation trust in part because "the deterrent to healthy risk taking by businesses would undermine the wealth-creating potential of capitalist endeavors"); NCP Litig. Trust v. KPMG LLP, 901 A.2d 871, 882-83 (N.J. 2006) (holding that "a claim for negligence may be brought on behalf of a corporation against the corporation's allegedly negligent third-party auditors" in part because "auditor liability would create an incentive for auditors to be 'more diligent and honest in the future'") (internal citation omitted).
247. See infra text accompanying notes 307-11.
248. We are not the only ones to recognize this trend. In fact, even without the benefit of a straw poll, we venture to say that most torts scholars would concur. See generally MARK A. GEISTFELD, TORT LAW: THE ESSENTIALS (forthcoming 2008) (manuscript at 38, on file with the author) ("In addressing the social problem of accidental harms, tort law is understandably concerned about the deterrence capabilities of a liability rule.");
249. Guido Calabresi, Toward a Unified Theory of Torts, 1 J. TORT L. 1 (2007) (urging that both corrective justice and instrumental considerations have for centuries played a role in tort decisions);
250. William E. Nelson, From Fairness to Efficiency: The Transformation of Tort Law in New York, 1920-1980, 47 BUFF. L. REV. 117 (1999) (discussing the shift in New York's tort law from an analysis based on fairness and moral blameworthiness to one influenced by efficiency and deterrence);
251. Virginia E. Nolan & Edmund Ursin, The Deacademification of Tort Theory, 48 U. KAN. L. REV. 59, 90 (1999) ("As we reach the twenty-first century, . . . it seems appropriate we acknowledge that modern corrective justice scholarship with its nineteenth-century conceptual apparatus is . . . an anachronism and should be treated as such.");
252. Robert L. Rabin, The Duty Concept in Negligence Law: A Comment, 54 VAND. L. REV. 787, 802 (2001) [hereinafter Rabin, Duty Concept] (commenting on Goldberg and Zipursky's critique as follows: "One can certainly take exception to this polycentrism from a normative perspective, but it is nonetheless the reality of duty jurisprudence");
253. Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV. 1801 (1997) (offering a reconciliation of the instrumentalist and noninstrumentalist understandings of tort law);
254. Jane Stapleton, Evaluating Goldberg and Zipursky's Civil Recourse Theory, 75 FORDHAM L. REV. 1529, 1556-57 (2006) ("But tort law's finely articulated incidence of obligations does not simply track moral duty, a point illustrated by the absence of a duty to attempt an easy rescue of a helpless stranger. Moreover, some aspects of tort law seem very much more easily rationalized on instrumental grounds . . . . An adequate theory of tort law must encompass this pluralism if it seeks to respect real cases and actual judicial reasoning.");
255. Stephen D. Sugarman, Doing Away with Tort Law, 73 CAL. L. REV. 555, 603 (1985) (claiming that corrective justice focus "is thoroughly unrealistic today");
256. Wendy E. Wagner, What's It All About, Cardozo?, 80 TEX. L. REV. 1577, 1586 (2002) (stating "most seem to agree that tort law is in large part about forcing actors to internalize external costs . . . in a variety of private settings").
257. See also RESTATEMENT (SECOND) TORTS § 901(c) (1979) (identifying that one of the purposes of tort law is to "deter wrongful conduct");
258. ALI, ENTERPRISE RESPONSIBILITY FOR PERSONAL INJURY: REPORTERS' STUDY 25 (1991) ("Although this corrective justice rationale continues to maintain its hold on the popular mind and to have important scholarly exponents, its premises have become progressively less resonant with the real world of tort litigation."). Moreover, the U.S. Supreme Court's federal preemption of state law jurisprudence is premised on the foundational proposition that a tort judgment "'can be, indeed is designed to be, a potent method of governing conduct and controlling policy.'" Riegel v. Medtronic, Inc., 128 S. Ct. 999, 1008 (2008) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)). Even nonlawyers who study tort law reach the conclusion that there is a deterrent component to it.
259. See, e.g., SARAH S. LOCHLANN JAIN, INJURY: THE POLITICS OF PRODUCT DESIGN AND SAFETY LAW IN THE UNITED STATES 2, passim (2006) (referring, inter alia, to products liability cases filed out of frustration with federal regulation to "enforce the development of safer designs through litigation").
260. See Stapleton, supra note 217, at 1532 ("Had Goldberg and Zipursky placed more emphasis on the fact that the analytical arrangement of legal concepts is a matter of choice rather than inherently mandated, they may have seen that their project is a normative one: to persuade lawyers to choose the conceptual arrangements Goldberg and Zipursky prefer.").
261. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(a) (Proposed Final Draft No. 1, 2005).
262. It is also likely that this default rule embodies instrumental considerations such as the desire to deter unreasonably risky conduct. We note that law and economists have no use for the concept of duty as imposing any limits on liability and are perfectly comfortable with a universal duty of reasonable care, at least for physical harm. See LANDES & POSNER, supra note 200, at 142 (observing that in H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928), "the duty concept is not helpful").
263. See also CALABRESI, supra note 200; RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (7th ed. 2007) (virtually ignoring the idea of duty);
264. STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987).
265. For a recent exception, see Keith N. Hylton, Duty in Tort Law: An Economic Approach, 75 FORDHAM L. REV. 1501 (2006). Hylton finds several no-duty and limited-duty rules justified on a variety of grounds, including as a complement to protecting property rights (for example, no duty to trespassers), in instances in which the actor's conduct confers disproportionate benefit to others (for example, the rescuer rule that does not impose a duty of reasonable care to self on rescuers), and when the parties are in a contractual relationship that provides a basis for allocating risks that arise within the contractual framework. At least with regard to the actor whose conduct confers disproportionate benefits on others (externalized benefits, in the vernacular), tort law does not have to rely on no duty, as the negligence calculus already takes into account both private benefits to the actor as well as, more broadly, benefits from a social perspective.
266. See RESTATEMENT (SECOND) OF TORTS §§ 291-92 (1965).
267. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(b) (Proposed Final Draft No. 1, 2005).
268. Cf. Goldberg & Zipursky, Shielding Duty, supra note 4, at 333.
269. See supra notes 195-198 and accompanying text.
270. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7(b) (Proposed Final Draft No. 1, 2005).
271. See, e.g., Strauss v. Belle Realty Co., 482 N.E.2d 34, 36-37 (N.Y. 1985) (denying recovery to plaintiff not in privity with defendant electric utility due to concerns for "enormous" liability).
272. See, e.g., Kelly v. Gwinnell, 476 A.2d 1219, 1224 (N.J. 1984) (recognizing that allowing recovery for parties injured as a result of social hosts serving alcohol "will interfere with accepted standards of social behavior; will intrude on and somewhat diminish the enjoyment, relaxation, and camaraderie that accompany social gatherings at which alcohol is served; and that such gatherings and social relationships are not simply tangential benefits of a civilized society but are regarded by many as important").
273. See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1116-19 (11th Cir. 1992) (addressing concern about chilling speech by granting recovery to the sons of a murder victim who sued a magazine alleging the negligent publication of an advertisement that created an unreasonable risk of solicitation of violent criminal activity).
274. For example, respecting the role of contract law in allocating risk explains a considerable portion of the economic loss rule that generally denies a tort duty when the harm is merely economic. See, e.g., Franklin Grove Corp. v. Drexel, 936 A.2d 1272, 1275 (R.I. 2007) ("Our rationale for abiding by the economic loss doctrine centers on the notion that commercial transactions are more appropriately suited to resolution through the law of contract, than through the law of tort."). Similarly, special rules about the duties land possessors owe to entrants on the land reflect the tension between tort law and private property rights. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 52 cmt. h (Council Draft No. 7, 2007).
275. See, e.g., Riss v. City of N.Y., 240 N.E.2d 860, 860 (N.Y. 1968) (denying recovery to a plaintiff against the city for failing to provide adequate police protection, noting that "[t]he amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed").
276. See, e.g., Broadbent v. Broadbent, 907 P.2d 43, 49-50 (Ariz. 1995) (adopting a "reasonable parent" standard in suits by children against their parents due to the desire "to protect the right of parents to raise their children by their own methods and in accordance with their own attitudes and beliefs").
277. See supra notes 90-93 and accompanying text.
278. See Goldberg & Zipursky, Moral, supra note 85, at 1820 (explaining that "[f]or Cardozo [in Palsgraf], the foreseeability of harm to a class of persons goes to the question of whether certain conduct is owed to those persons, not to whether certain liabilities are appropriately borne by defendants");
279. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 59-60 (1998) (distinguishing between relational and nonrelational theories of tort duty).
280. At times, G&Z offer mixed messages as to the proper doctrinal home for this nexus analysis. Their most common assertion is that it is a matter for duty, Goldberg & Zipursky, Place of Duty, supra note 3, at 709-12, although, at other times, they seem to assert that it is a question of breach, id. at 686 (discussing the "relationality of breach"), or even a sixth and altogether separate element, similar to a standing requirement, Zipursky, supra note 232, at 10. Perhaps the most salient point that G&Z are clear on is that the duty-breach nexus issue is a matter for the court, and not the jury, to decide.
281. The Third Restatement recognizes that some modern duties arise out of relationships, such as the duty a physician owes to a patient, and that certain relationships may also be employed as a basis for limiting duties, such as the relationship between land possessors and trespassers. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 cmts. a & e (Proposed Final Draft No. 1, 2005). The Third Restatement contains no reference to relationality in the black letter section providing for a default duty of reasonable care. Id. § 7(a).
282. The reporters' notes to section 29 (the section that defines "scope of liability," or proximate cause) state that under the Restatement, "[plaintiff-foreseeability] is dealt with as a matter of scope of liability rather than duty . . . ." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 29 reporters' note to cmt. n (Proposed Final Draft No. 1, 2005).
283. See also Palsgraf v. Long Island R.R., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting) (contending that the issue of an unforeseeable plaintiff should be dealt with as a matter of proximate cause, not duty); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 6 reporters' note cmt. f (Proposed Final Draft No. 1, 2005) ("Modern scholars tend to classify the issue of the foreseeable plaintiff under the general heading of proximate cause, as does this Restatement in Chapter 6.").
284. Palsgraf, 162 N.E. at 99. Of course, although Cardozo was referring to duty with his use of this phrase, we accept this idea as applied to negligence liability rather than duty in particular.
285. See, e.g., Farwell v. Keaton, 240 N.W.2d 217, 221-22 (Mich. 1976); Cuffy v. City of N.Y., 505 N.E.2d 937, 940 (N.Y. 1987).
286. E.g., Jacques v. First Nat'l Bank of Md., 515 A.2d 756, 759 (Md. 1986) ("Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability.").
287. See Nycal Corp. v. KPMG Peat Marwick LLP, 688 N.E.2d 1368, 1370-71 (Mass. 1998) (noting that in some jurisdictions, "an accountant may be held liable to noncontractual third parties who rely to their detriment on an inaccurate financial report if the accountant was aware that the report was to be used for a particular purpose, in the furtherance of which a known party (or parties) was intended to rely, and if there was some conduct on the part of the accountant creating a link to that party, which evinces the accountant's understanding of the party's reliance").
288. E.g., Carter v. Kinney, 896 S.W.2d 926, 928-30 (Mo. 1995) (en banc) (tailoring defendant landowner's duty depending on whether the plaintiff was an invitee, licensee, or trespasser).
289. See supra notes 97-98 and accompanying text.
290. Harper v. Herman, 499 N.W.2d 472, 474 n.2 (Minn. 1993) (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 56, at 374 (5th ed. 1984)).
291. Strauss v. Belle Realty Co., 482 N.E.2d 34, 38 (N.Y. 1985).
292. The case arguably fits G&Z's duty-breach nexus theory because, although the power company was in contractual privity with the plaintiff apartment owner, the plaintiff's injury occurred in an apartment common area, in which the power was governed by the defendant's contract with the landlord. Thus, it was arguably not foreseeable that the defendant's breach of duty would injure the plaintiff. This seems to be a fairly weak argument, however. The purpose of the defendant's contract with the landlord was to provide electricity for use by apartment residents such as the plaintiff. Moreover, the defendant also breached its contract with the plaintiff, and it was arguably the defendant's breach of this duty that led to the plaintiff's need to go to the common area for water. Thus, it seems that this case is more easily described by some other reasoning. See id. at 36-38.
293. Id. at 38 ("While limiting recovery to customers in this instance can hardly be said to confer immunity from negligence on Con Edison, permitting recovery to those in plaintiff's circumstances would, in our view, violate the court's responsibility to define an orbit of duty that places controllable limits on liability.") (internal citation omitted).
294. Of course, it is also possible that some of these courts also utilize genuine relational or obligation based reasoning in reaching their decisions. Our point is that in many of these cases, courts rather transparently use relationality merely as a tool for instrumental ends. In still other cases, debate over the true motivation of the court's use of relationality is pointless - courts' reasoning is sometimes conclusory and might stem from either jurisprudential approach.
295. See, e.g., Nycal Corp. v. KPMG Peat Marwick LLP, 688 N.E.2d 1368, 1372-74 (Mass. 1998) (limiting auditor liability to those with whom the auditor had a sufficient relationship in order to ensure the continuing availability of public audits); Ultramares Corp. v. Touche, 174 N.E. 441, 444 (N.Y. 1931) (expressing concern that accountants might be exposed to liability "in an indeterminate amount for an indeterminate time to an indeterminate class").
296. See, e.g., Thing v. La Chusa, 771 P.2d 814, 815 (Cal. 1989) (limiting liability for bystander emotional harm to family members of the physical harm victim).
297. See Kelly v. Gwinnell, 476 A.2d 1219, 1221, 1224 (N.J. 1984) (recognizing that although courts sometimes impose a duty on social hosts in cases brought by guests, courts often limit a social host's liability to third parties harmed by a guest due to concerns that such liability would "interfere with accepted standards of social behavior").
298. See, e.g., Carter v. Kinney, 896 S.W.2d 926, 930 (Mo. 1995) (en banc) ("The contours of the legal relationship that results from the possessor's invitation reflect a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish.").
299. In Tarasoff v. Regents of the University of California, 551 P.2d 334, 347-48 (Cal. 1976), the court imposed a duty on the defendant psychotherapist to warn a third party of threats issued by a patient, ostensibly due to the psychotherapist's special relationship with his patient. In light of courts' frequent refusal to impose a similar duty on medical doctors, we think that the more likely basis for the Tarasoff decision is the California courts expressed desire to prevent harm caused by the mentally ill. See id.
300. See, e.g., Cuffy v. City of N.Y., 505 N.E.2d 937, 939-41 (N.Y. 1987) (limiting police liability for failing to protect an individual threatened by another to instances in which there exists a sufficient special relationship based on concerns, inter alia, about interfering with discretionary determinations of another branch of government).
301. See, e.g., Farwell v. Keaton, 240 N.W.2d 217, 221-22 (Mich. 1976) (imposing an affirmative duty to rescue because the parties were "companions on a social venture"). Substantive relationality might also, in particular cases, be relevant to proximate cause analysis. For example, where a father negligently conducts a science experiment in his basement, the foreseeability that his adult son might visit may lead a jury to impose liability on the father for injuries sustained by the son.
302. We have doubts, however, that G&Z are correct that the Second Restatement supports their relational account of duty. See Goldberg & Zipursky, Place of Duty, supra note 3, at 685.
303. Section 281(b) of the Second Restatement does require negligence "with respect to the other," as G&Z point out. RESTATEMENT (SECOND) OF TORTS § 281(b) (1965). But comment c, which discusses this requirement, and includes the Palsgraf facts as an illustration, nowhere states that relationality is an aspect of duty. Id. § 281 cmt. c. Moreover, nowhere in the elaboration of negligence contained in sections 282-84 is there anything about relationality other than that implicit in determining the foreseeable risk. This suggests to us that the Second Restatement implicitly leaves Palsgraf-type relationality for resolution in the context of proximate cause. If these portions of the Second Restatement make duty relational, they have done so most obscurely.
304. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 reporters' note to cmt. a (Proposed Final Draft No. 1, 2005) (citing cases expressing the view that a duty of care exists by everyone in their conduct to all who might be harmed). See also Stapleton, supra note 217, at
305. See, e.g., RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 6 reporters' note to cmt. f (Proposed Final Draft No. 1, 2005) ("Modern scholars tend to classify the issue of the foreseeable plaintiff under the general heading of proximate cause, as does this Restatement in Chapter 6."); KEETON ET AL., supra note 242, § 53, at 357 ("Certainly [in the early common law] there is little trace of any notion of a relation between the parties, or an obligation to any one individual, as essential to the tort. The defendant's obligation to behave properly apparently was owed to all the world . . . .");
306. DAVID W. ROBERTSON ET AL., CASES AND MATERIALS ON TORTS 186-87 (2d ed. 1998) (noting modern trend toward treating plaintiff-foreseeability as a question of proximate cause, not duty);
307. William Powers, Jr., Reputology, 12 CARDOZO L. REV. 1941, 1952 (1991) (explaining that the dominant modern method by which liability is limited is based on unforeseeability of the harm or unforeseeability of the plaintiff, and is under the heading of proximate cause);
308. The Theory of Torts, supra note 9, at 661 (describing the universal tort duty as "a duty imposed on all the world, in favor of all"); Zipursky, supra note 232, at 3 n.4 (citing casebooks that discuss Palsgraf in the context of proximate cause).
309. See, e.g., Jacques v. First Nat'l Bank of Md., 515 A.2d 756, 758 (Md. 1986) (citing KEETON ET AL., supra note 242, § 53, at 357, for the proposition that: "[W]hen negligence began to take form as a separate basis of tort liability, the courts developed the idea of duty, as a matter of some specific relation between the plaintiff and the defendant, without which there could be no liability"); Chavez v. Desert Eagle Distrib. Co. of N.M., 151 P.3d 77, 83 (N.M. Ct. App. 2006) ("The existence of a common law duty is determined by looking 'at the relationship of the parties, the nature of the plaintiff's interest and the defendant's conduct, and the public policy in imposing a duty on the defendant.'") (internal citations omitted); Selwyn v. Ward, 879 A.2d 882, 887 (R.I. 2005) ("This Court determines whether a duty exists on a 'case-by-case basis,' considering 'all relevant factors, including the relationship between the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations,' . . . and the 'foreseeability of harm to the plaintiff.'"). We note, however, that these jurisdictions often indicate that relationality drops out of the analysis in cases where the defendant's act created a risk of physical harm. See, e.g., Jacques, 515 A.2d at 760 ("[W]here the risk created is one of personal injury, no such direct relationship [between plaintiff and defendant] need be shown . . . .").
310. See, e.g., Leppke v. Segura, 632 P.2d 1057, 1059 (Colo. Ct. App. 1981) ("The duty to exercise reasonable care extends only to foreseeable damages and injuries to foreseeable plaintiffs. The Leppkes' injuries and damages resulting from the head-on collision, as a matter of law, were foreseeable injuries and they were foreseeable plaintiffs; therefore, the defendants' duty extended to them for the relief which they seek.") (internal citation omitted); Smith v. Fla. Power & Light Co., 857 So. 2d 224, 233-37 (Fla. Dist. Ct. App. 2003) (declining to impose a duty on the defendant power company to protect the plaintiff against electrocution by power lines because the particular plaintiff was not foreseeable); Moning v. Alfono, 254 N.W.2d 759, 765 (Mich. 1977) (imposing a duty on the defendants only after reasoning that "[plaintiff] Moning, as a playmate of a child who purchased a slingshot marketed by the defendants, was within the foreseeable scope of the risk created by their conduct in marketing slingshots directly to children. Moning was a foreseeable plaintiff"); Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. 1990) (citing Palsgraf m stating that "[n]o duty is owed to persons outside 'the orbit of the danger as disclosed to the eye of reasonable vigilance'").
311. See, e.g., Gipson v. Kasey, 150 P.3d 228, 231-32 (Ariz. 2007) (rejecting consideration of foreseeability and fact specific relationality in the context of duty); Alvarado v. Sersch, 662 N.W.2d 350, 353 (Wis. 2003) ("Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. . . . '[E]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.'") (internal citation omitted) (quoting Palsgraf v. Long Island R.R., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting)).
312. Compare Widlowski v. Durkee Foods, Div. of SCM Corp., 562 N.E.2d 967, 968-72 (Ill. 1990) (stating that "[i]t is well settled that every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act . . ." and then holding that defendant owed no duty to the particular plaintiff because she was unforeseeable), with Wintersteen v. Nat'l Cooperage & Woodenware Co., 197 N.E. 578, 582 (Ill. 1935) ("It is axiomatic that every person owes a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of his act . . . . [This duty] extends to remote and unknown persons."). Compare also Valentine v. On Target, Inc., 727 A.2d 947, 949-51 (Md. 1999) (declining to impose a duty when plaintiff sued defendant gun dealer for murder of plaintiff s decedent, committed by a third party with a gun stolen from defendant's store), with Jacques v. First Nat'l Bank of Md., 515 A.2d 756, 760 (Md. 1986) (stating that in contrast to economic harm cases, "where the risk created is one of personal injury, no such direct relationship [between plaintiff and defendant] need be shown").
313. See W. Jonathan Cardi, Reconstructing Foreseeability, 46 B.C. L. REV. 921, 965-67 [hereinafter Cardi, Reconstructing] (urging that this distinction is often meaningless). Palsgraf, for example, might have been treated as a type or manner of injury case - asking whether the defendant should be held liable for an injury by falling scales or injury by explosion - rather than a case involving the nexus between plaintiff and defendant.
314. See, e.g., Weigold v. Patel, 840 A.2d 19, 25 (Conn. App. Ct. 2004) ("'In negligence cases such as the present one, in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff.'") (internal citations omitted); Moning, 254 N.W.2d at 764 (characterizing the proximate cause inquiry as "a policy question often indistinguishable from the duty question").
315. See generally Cardi, Reconstructing, supra note 261 (arguing that as a conceptual matter, foreseeability, as a constituent of relationality, might fit either within duty or proximate cause).
316. See supra note 149.
317. Goldberg & Zipursky, Place of Duty, supra note 3, at 679-80.
318. An anecdote - but a telling one in our judgment - supports this proposition. At the council meeting of the ALI on December 7, 2007, a draft of the chapter on land possessor duties was presented and discussed. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM ch. 9 (Council Draft No. 7, 2007). That chapter distinguishes between certain "flagrant trespassers," to whom the possessor has a duty only not to intentionally, willfully or wantonly injure, id. § 52, and all other entrants for whom the duty is one of reasonable care, id. § 51. Several members of the council, unfamiliar with the nuances of tort law, were confused at how to reconcile the idea that land possessors could have a duty of reasonable care for risks on their property at the same time that they only have a duty with regard to those same risks not to intentionally, willfully or wantonly cause injury to flagrant trespassers. That confusion was borne of their thinking that duty is act based, not relationally based.
319. See supra notes 96-98 and accompanying text.
320. Insofar as our common notions of obligation inform and are shaped by criminal law, it is notable that criminal duties are not typically relational. For example, we have a criminal duty not to speed without regard to the foreseeability of those potentially harmed by that act.
321. In the breach context, circumstantial relationality is judged in relation to others generally, not with regard to the particular plaintiff. DOBBS, supra note 12, § 143, at 335 (explaining, in the context of a discussion of breach: "So if a speeding driver crashes into your living room, the fact that a reasonable person would not have specifically recognized a risk of harm to living room furniture will not assist the driver to avoid liability. It is one of the cluster of harms in a generally foreseeable category, and that is enough."). The latter is the focus of cause in fact and proximate cause.
322. Jane Stapleton makes what is essentially the same point in arguing that treating relationality as a duty question leads to distasteful differentiations between victims' claims. Stapleton, supra note 217, at 1549.
323. Specifically, all that would remain for jury determination would be whether the defendant's actions in the face of the risk (already determined by the court to be foreseeable) were unreasonable and whether those actions were a cause in fact of the plaintiff's injury.
324. See generally W. Jonathan Cardi, Purging Foreseeability, 58 VAND. L. REV. 739 (2005) [hereinafter Cardi, Purging] (urging the benefits of analyzing foreseeability as part of breach and proximate cause rather than duty); Cardi, Reconstructing, supra note 261 (discussing the purpose of elements of a cause of action and arguing that foreseeability serves its conceptual purposes best in the context of breach and proximate cause).
325. Cardi, Reconstructing, supra note 261, at 932-37.
326. Cardi, Purging, supra note 272, at 790-804.
327. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 cmt. j (Proposed Final Draft No. 1, 2005).
328. Goldberg & Zipursky, Place of Duty, supra note 3, at 727-28.
329. Cardi, initially, and then the Third Restatement, have thoroughly considered the appropriate role of foreseeability in duty analysis. This section draws on and summarizes the gist of what we have said previously. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 reporters' note to cmt. j (Proposed Final Draft No. 1, 2005);
330. Cardi, Reconstructing, supra note 261, at 972-83 (arguing against categorical foreseeability);
331. Cardi, Purging, supra note 272, at 799-804 (arguing in favor of leaving foreseeability decisions to the jury). See Howarth, supra 180, at 634 (concluding that foreseeability has no honest role in determinations of duty and that, when England had civil juries, foreseeability was employed as an element of duty to enable courts to screen cases in which breach was absent or weak).
332. Mussivand v. David, 544 N.E.2d 265, 272 (Ohio 1989). Exercising great self-restraint, we desist from piling on the cases that we find all the time in which courts rely on specific facts to determine that the defendant owed no duty and thus that a jury is not required to address the claim of negligence.
333. Compare Balt. & Ohio R.R. v. Goodman, 275 U.S. 66, 70 (1927) (Justice Holmes prescribing, in a case involving a plaintiff hit by a train at an unguarded railway crossing, a duty to get out of one's car and assess the possibility of approaching trains), with Pokora v. Wabash Ry. Co., 292 U.S. 98, 101-02 (1934) (Cardozo limiting Goodman to its facts due to plaintiff's correct contention that, in light of the circumstances of this case, getting out of his car may have actually increased the risk of being hit by an approaching train).
334. Esper & Keating, supra note 4, at 327.
335. Actually, we find E&K's proposal to be a bit contradictory in light of their surrounding arguments. E&K simultaneously (1) bemoan the California Supreme Court's conflation of duty and breach, id. at 323-28; (2) explicitly recognize that "the [Rowland] list of factors . . . bears a close resemblance to those that juries must bring to bear when they determine if a duty of care has been breached," id. at 324; (3) recognize that foreseeability is the chief factor in that test, id. at 318; and yet (4) endorse foreseeability as the primary consideration in duty questions, id. at 327.
336. Id. at 327.
337. Heaven v. Pender, (1883) 11 Q.B.D. 503, 509 (U.K) (holding that "whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger"). See also, e.g., Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H. 2003) ("All persons have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm. Whether a defendant's conduct creates a risk of harm to others sufficiently foreseeable to charge the defendant with a duty to avoid such conduct is a question of law . . . .") (internal citation omitted); Brennen v. City of Eugene, 591 P.2d 719, 723 (Or. 1979) (en banc) (stating that a defendant owes a duty where the defendant "creat[ed] a foreseeable risk of harm to others").
338. See, e.g., Ariz. Pub. Serv. Co. v. Brittain, 486 P.2d 176, 178 (Ariz. 1971) (en banc); Sewell v. Pub. Serv. Co. of Colo., 832 P.2d 994, 998 (Colo. Ct. App. 1991) (in reversing the trial court's grant of summary judgment for the defendant utility company on the grounds that there was no duty, the court held that "if differing factual inferences may be drawn from the evidence, the question of foreseeability remains a disputed factual issue, and the entry of summary judgment in such circumstances is improper"); Lee v. Farmer's Rural Elec. Coop. Corp., 245 S.W.3d 209, 216-17 (Ky. Ct. App. 2007) (holding that in the context of deciding the existence of a duty, when varying inferences are possible with respect to foreseeability, the question must be submitted to the jury) (also citing, for the same proposition, Smith v. Tenn. Valley Auth., 699 F.2d 1043 (11th Cir. 1983) (applying Tennessee law)); Elbert v. City of Saginaw, 109 N.W.2d 879 (Mich. 1961). In fact, even Cardozo, in G&Z's favorite case, would leave foreseeability to the jury. See Palsgraf v. Long Island R.R., 162 N.E. 99, 101 (N.Y. 1928) ("The range of reasonable apprehension is . . . if varying inferences are possible, a question for the jury.").
339. See, e.g., Cardi, Purging, supra note 272, at 740-41 (describing problems with courts' use of foreseeability);
340. Thomas C. Galligan, Jr., A Primer on the Patterns of Negligence, 53 LA. L. REV. 1509, 1523 (1993) (suggesting that "judges should not rely on, or hide behind, words like . . . foreseeable, unforeseeable . . . and whatever other magic mumbo jumbo courts could use to obfuscate the policies that were really at the heart of their decisions");
341. Patrick J. Kelley, Restating Duty, Breach, and Proximate Cause in Negligence Law: Descriptive Theory and the Rule of Law, 54 VAND. L. REV. 1039, 1046 (2001) (describing foreseeability as "so open-ended [it] can be used to explain any decision, even decisions directly opposed to each other. . . . [so as to] undermine clarity and certainty in the law whenever [it is] embedded in a legal standard");
342. Patricia K. Fitzsimmons & Bridget Genteman Hoy, Students' Perspective, Visualizing Foreseeability, 45 ST. LOUIS U. L.J. 907, 908, 911 (2001) (interpreting a torts professor to mean that "a foreseeable act may just as well be called 'strawberry shortcake'" because the term is merely a placeholder representing "a malleable standard used by judges in their roles as gatekeepers and tweakers").
343. Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007) (citing the Third Restatement in rejecting consideration of foreseeability in the context of duty).
344. Thus, we agree with E&K who make the same objection. See Dilan A. Esper & Gregory C. Keating, Putting "Duty" in its Place, 41 LOY. L.A. L. REV. (forthcoming 2008) (manuscript at 6-7, on file with authors) [hereinafter Esper & Keating, Putting "Duty"].
345. In that respect, eliminating foreseeability from duty is similar to denying a duty of easy rescue and limiting duty with regard to emotional harm and economic loss. See infra text accompanying notes 307-11.
346. Herbert Wechsler, while director of the ALI, provided the best account of the extent to which Restatements should go beyond description and take account of normative matters: "[W]e should feel obliged in our deliberations to give weight to all of the considerations that the courts, under a proper view of the judicial function, deem it right to weigh in theirs." Herbert Wechsler, Report of the Director, 1967 A.L.I. 5, 5. That statement hangs on the wall of the ALI conference room at its headquarters in Philadelphia.
347. It would be foolish, in our view, for a Restatement to take sides among the schools clashing over the unitary metatheory that explains tort law. The late Gary Schwartz concurred with our opinion both in his own view that tort law is pluralistic, see Schwartz, supra note 217, and in his acknowledgement in the Third Restatement of moral and instrumental grounds to justify negligence. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES § 4 cmt. j (Discussion Draft 1999).
348. Thus, in Weirum v. RKO General, Inc., 539 P.2d 36, 39 (Cal. 1975), one finds the following three statements juxtaposed almost right next to each other in the court's opinion: [E]very case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as a result of their conduct. However, foreseeability of the risk is a primary consideration in establishing the element of duty. . . . While duty is a question of law, foreseeability is a question of fact [that was established by the jury's finding of negligence]. (internal citations omitted). We find the first two statements irreconcilable. We cannot understand why, if a jury's finding of negligence includes a sufficient determination of foreseeability for duty purposes, foreseeability should play a redundant role in duty. The primary answer is not a satisfying one: it gives courts room to maneuver when they want cover to deny liability without the necessity of explaining the animating reason.
349. See, e.g., Gipson v. Kasey, 150 P.3d 228 (Ariz. 2007). In Gipson, the defendant provided Oxycodone to a coworker at a party for recreational use. The coworker shared it with her boyfriend who was killed by an overdose of a combination of the drug and alcohol. Id. at 229-30. The court was prepared to entertain adopting a default duty of reasonable care, but the plaintiff declined to argue that issue. In its "search" for the basis of a duty, the court found a statute making it illegal to provide a prescription drug to another without a prescription. Id. at 233-34.
350. See Esper & Keating, supra note 4, at 326 ("The fundamental problem is that courts are distorting the role of duty in negligence law by proceeding as though the existence of obligation in tort is always an open question. Duty cannot be an eternally open question . . . ."). Even G&Z seem troubled at least by routine inquiries into the basis for a duty, although we understand them to be troubled by the nature of the inquiry rather than by the frequency with which it occurs. Their anti-instrumentalist version of tort law would bar instrumentalist considerations, subject to their concession described supra notes 205-07 and accompanying text.
351. Balt. & Ohio R.R. Co. v. Goodman, 275 U.S. 66 (1927).
352. Pokora v. Wabash Ry. Co., 292 U.S. 98 (1934).
353. Goodman, 257 U.S. at 69-70.
354. Pokora, 292 U.S. at 100-03.
355. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 8 cmt. c & reporters' note to cmt. c (Proposed Final Draft No. 1, 2005).
356. Goldberg & Zipursky, Place of Duty, supra note 3, at 716-17.
357. Esper & Keating, supra note 4, at 324.
358. See, e.g., DOBBS, supra note 12, § 227, at 579-80; Stephen D. Sugarman, Assumption of Risk, 31 VAL. U. L. REV. 833, 843-44 (1997).
359. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 cmt. i (Proposed Final Draft No. 1, 2005).
360. See Rabin, Duty Concept, supra note 217, at 791.
361. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 cmt. j & reporters' note to cmt. j (Proposed Final Draft No. 1, 2005).
362. A telling example of this phenomenon is Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762 (La. 1999), in which the plaintiff, a customer of the defendant, was mugged in the defendant's parking lot. She alleged the defendant was negligent in failing to have security outside in the parking lot. Id. at 765. Relying on "foreseeability" to decide if the defendant owed the plaintiff a duty, the court proceeded to a Carroll Towing balancing of the foreseeable probability and magnitude of harm against the burden of providing a security guard - the breach analysis in other words - before concluding that there was insufficient foreseeability for the defendant to have a duty. Id. at 768-69. The court might well have reached the same conclusion and contributed to analytical clarity - our students' confusion is considerably enhanced when they come to Posecai - if the court had said that no reasonable jury could have found the defendant negligent for failing to employ security guards to patrol the parking lot.
363. E&K find this a reason to keep foreseeability in duty. See Esper & Keating, Putting "Duty," supra note 287, (manuscript at 5). Because we think that invoking foreseeability was a cover for other unarticulated reasons for expanding liability - it was neither necessary nor a candid explanation - we disagree with E&K.
364. Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968).
365. Thing v. La Chusa, 771 P.2d 814, 829-30 (Cal. 1989).
366. See also Stapleton, supra note 217, at 1559 (advocating transparency in tort law in order to "identify the concerns of the courts . . . and evaluate those concerns"); Esper & Keating, Putting "Duty," supra note 284 (manuscript at 5) (identifying transparency as a virtue in judicial opinions).
367. Ky. Fried Chicken of Cal., Inc. v. Superior Court, 927 P.2d 1260 (Cal. 1997).
368. Id. at 1262.
369. Id. The majority states she sought to recover for emotional harm. Id. A dissenting account provides that she sought recovery for physical injury. Id. at 1272 (Kennard, J., dissenting).
370. Id. at 1269.
371. Id. at 1270.
372. Goldberg & Zipursky, Shielding Duty, supra note 4, at 355-56.
373. As is so often the case, available empirical evidence does not resolve the matter. We have been unable to locate any research that investigates whether changes in noncriminal law affects the rate of crime. A review of effects of making crimes more costly - by imposing the death penalty, increasing sentences for crime, or increasing apprehension of criminals - reveals at most modest effects on the incidence of criminal activity. See Steven D. Levitt & Thomas J. Miles, Empirical Study of Criminal Punishment, in HANDBOOK OF LAW & ECONOMICS 457 (A. Mitchell Polinsky & Steven Shavell eds., 2007). Modifying tort law to, in effect, make the rewards of certain criminal activity greater - for example, making hostage taking during a robbery yield more rewards to the criminal - is at least one step removed from changing criminal penalties, and, one would suspect, have even less of an effect on criminal behavior.
374. We leave for another day the role of duty with regard to other types of harm, such as emotional or economic, that tort law also addresses.
375. See generally RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 7 (Proposed Final Draft No. 1, 2005).