ABSTRACT
In Recognizing Wrongs, Goldberg and Zipursky provide a remarkable scholarly explanation of tort law, depicting torts as breaches of a duty of noninjury, civilly actionable by their victims. This view of tortious wrongs, G&Z explain, provides a coherent understanding of what unifies all torts, based on a relation between one person holding a right not to be injured and another under a duty not to injure. The duty of noninjury represents a conception of duty, under which although the wrongdoing and the injury appear to be separate, they are the essence of what G&Z describe as ‘integrated wrongs’. Thus, on one hand, in cases such as battery or trespass, the defendant’s misconduct toward the plaintiff is also the injury (in the sense of normative loss) and on the other hand, in negligence cases, where the injury seems separable from the defendant’s misconduct, it (the injury) is actually part of the misconduct.
Focusing on negligence cases, I will suggest, first, that G&Z’s model of duty of noninjury might erroneously be interpreted as sending a reconciling message to ‘cynical viewers of duties’, who have abandoned the traditional treatment of duty as an independent element of negligence. Second, but relatedly, G&Z’s relational structure of the duty of noninjury, which frames the concept of duty in terms inclusive of the consequence of the defendant’s conduct rather than only in terms of conduct, might be perceived to compromise the idea of duty as an obligation to act in a certain way. Simply put, defining duties in terms of ‘behavior’ better reflects the notion of tort as a ‘collection of “dos” and “don’ts’’, guiding individuals on how they should treat one another.
Gilboa, Maytal, Duty of Noninjury, Duty of Care, and Guidance Rules: A Comment on Recognizing Wrongs (June 21, 2023), Hebrew University of Jerusalem Legal Research Paper Forthcoming; Bar Ilan University Faculty of Law Research Paper No 4487181.
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