Article by W. Jonathan Cardi & Michael D. Green
From Volume 81, Number 4 (May, 2008)
The concept of duty in tort law remains in turmoil. Courts say and do things that seem wildly inconsistent, sometimes proclaiming the existence of a general duty of reasonable care and then, often in the same case, engaging in a full-scale inquiry into whether the defendant owed the plaintiff a duty. Duty is often said to be categorical, and yet duty decisions sometimes appear to be narrowly dependent on the specific facts of the case at hand—although so far the duty inquiry has not turned on the color of the parties’ eyes. Academics also continue to battle over the proper role for duty in contemporary tort law. The Restatement (Third) of Torts (“Third Restatement”) confronts the duty question head on, but has received stinging criticism for failing to restate the law. To a significant extent, the credit or blame for the current state of duty law belongs to the California Supreme Court. Through much of the latter half of the twentieth century, the California Supreme Court played a leading role in the development of the modern law of duty (indeed much of contemporary tort law), first sweeping aside a variety of no-duty impediments to liability and then reinvigorating duty (more accurately, no-duty) as an instrument for limiting liability as the expansion of tort law ground to a halt and reversed course in the 1980s and 1990s.
Prominent torts scholars’ commentary on the California Supreme Court’s duty jurisprudence has recently occupied the pages of this journal. We wish to join the rich discussion already begun by John Goldberg and Benjamin Zipursky, and Dilan Esper and Gregory Keating. We also want to enter the fray on the appropriate role for duty in contemporary tort law and offer a conceptual grounding for the current Restatement’s treatment of duty.
Make a tax deductible contribution to the Southern California Law Review.
- Bank of America Corporation
- Ernst & Young Global Limited
- Los Angeles Chapter of the Federal Bar Association
- Thomas Safram & Associates