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Vanderbilt Law Review

Robert L. Rabin

First Page

787

Abstract

As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") that is the occasion for this Symposium has relegated the duty issue in negligence law to a relatively minor, nay-saying role. More particularly, duty is not directly mentioned by the Reporter in Section 3, which provides that "[a]n actor is subject to liability for negligent conduct that is a legal cause of physical harm.' And in Section 6, when the Reporter does get around to addressing the subject of duty, it is in arguably backhanded, no-duty terms:

"Even if the defendant's negligent conduct is the legal cause of the plaintiffs harm, the plaintiff is not liable for that harm if the court determines that the defendant owes no duty to the plaintiff. Findings of no duty are unusual, and are based on judicial recognition of special problems of principle or policy that justify the with- holding of liability."

So reads the black-letter. To Goldberg and Zipursky, this treatment radically understates the key role that duty plays as a determinative element in many negligence cases. In Goldberg and Zipursky's view, duty is a doctrinal tool for providing affirmative content to the range of accidental harm scenarios in which causally- related unreasonable conduct leads to liability. By contrast, as they view Section 6, duty serves simply as a limiting device that sometimes kicks in to defeat liability in cases of unreasonable conduct that causes accidental harm.

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