Abstract:
This article addresses the subtle yet turbulent duty wars currently raging in the courts and in the literature with respect to the conceptual nature of duty in tort law. The courts have increasingly been taking their cue from the scholarship, to which this article is expected to make a substantial contribution. The main dispute has been over the role of foreseeability in the duty analysis. This article demonstrates why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the three main scholarly camps – “purging” foreseeability from duty – is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, but in which foreseeability is itself a normative policy sub-element different in nature from the sort of foreseeability that underlies the jury’s breach and proximate cause findings.
Golanski, Alani, A New Look at Duty in Tort Law: Rehabilitating Foreseeability, and Related Themes (October 14, 2011). Albany Law Review, Vol. 75, 2011.
First posted 2011-10-15 20:13:17
Leave a Reply