ABSTRACT
Brown v USA Taekwondo – the California Supreme Court’s most recent reckoning with the doctrine of duty in negligence law – is an important and illuminating confrontation with a controverted corner of contemporary tort law. For decades now, California courts have been muddling their way through duty cases. They have been uncertain not only about when an actor bears some responsibility for reducing a risk or mitigating a harm, but also about how they should go about making such determinations. Ironically, perhaps, this predicament is the product of some of the most celebrated and fundamental developments in the law of torts during the latter half of the 20th century. The great California duty decisions of the late 1960s – Rowland v Christian and Dillon v Legg – were the bookends to an age of American tort law. MacPherson v Buick and Palsgraf v Long Island Railroad inaugurated that age by making reasonable foreseeability of harm the master principle of tort law. Rowland and Dillon brought the age of reasonable foreseeability to a close by showing us that reasonable foreseeability of harm can impose more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, courts in California and elsewhere have struggled to put duty doctrine back on track. Brown v USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close. Or so I shall argue.
Keating, Gregory C, Putting ‘Duty’ Back on Track: Brown v USA Taekwondo (February 26, 2024), USC Law Legal Studies Paper No 24-13.
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