Vanderbilt Law Review

Article Title

Duty Rules


David Owen

First Page



Few principles are more fundamentally important to modern society than duty. As obligation to oneself and others-to one's family, friends, neighbors, business associates, clients, customers, community, nation, and God-duty is the thread that binds humans to the world, to the communities in which they live. Duty constrains and channels human behavior in a socially responsible way before the fact, and it provides a basis for judging the propriety of behavior thereafter. Duty flows from millennia of social customs, philosophy, and religion. And duty is the overarching concept of the law.

Duty is central to the law of torts. Negligence law divides human choices to engage in (or refrain from) foreseeably harmful conduct as proper or improper, and choices are adjudged improper only if they involve a breach of duty. Thus, serving as the foundational element of a negligence claim, duty provides the front door to recovery for the principal cause of action in the law of torts: On the way to possible redress, every negligence claim must pass through the duty portal that bounds the scope of tort recovery for accidental harm. Yet in the draft Restatement (Third) of Torts: General Principles,' duty rules lie muffled, embedded in the negligence cause of action but excluded from recognition as a formal element.

Assessing whether the Restatement adequately describes the role of duty in the law of negligence requires study of two significant works of scholarship: a "discussion draft" of many basic negligence law principles in the Restatement (Third), authored by Re- porter Gary Schwartz, and an important article by Professors John Goldberg and Benjamin Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law. The draft Restatement's formulation of the negligence cause of action excludes duty as a black-letter element in the formal definition, ignoring its conventional position as the initial element of such claims. Decrying the relegation of duty to secondary status, Goldberg and Zipursky challenge the draft Restatement's failure to capture duty's vital role in the vast majority of American jurisdictions in which it is the threshold element of the tort of negligence.

This Essay briefly examines the role of duty in negligence law and the rules that define that role. The debate over how the Restatement (Third) should treat the duty concept is at once conceptual, doctrinal, and practical. The strength accorded the duty/no- duty issue is conceptually important because it defines the extent to which the law of torts holds people accountable for their damaging misdeeds. In duty rulings, negligence law balances the interests of certain classes of potential victims in security from certain types of harm against certain interests of certain classes of actors in freedom of action. This balance of interests controls the extent to which courts close the door on major types of problems lying at the edge of tort law or pass these border problems through to juries for preliminary determination. Once the proper role of duty in negligence law is resolved conceptually, duty and no-duty rules must be formulated for use by judges, jurors, and lawyers counseling actors and victims. How strongly duty rules are defined will control the extent to which negligence lawsuits of various types are allowed to proceed or are summarily ejected from the judicial system. In short, weaker no-duty rules funnel more disputes at the margin of negligence law into local courtrooms for redress while stronger no-duty rules force the victims of such disputes to seek relief from institutions other than the courts, such as from private and public insurance.

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