The Restatement (Third) and the Place of Duty in Negligence Law

I. INTRODUCTION A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a of reasonable care and injured her by breaching that Every state adheres the four-element account,1 with perhaps two exceptions.2 That account was prominent in the various editions of Prosser's treatise,3 and is likewise prominent in Professor Dobbs' successor treatise.4 Leading casebooks also feature the four-element formula.5 Given the widespread adoption of the four-element test, one would have expected encounter it somewhere in the two drafts of the Restatement (Third) of Torts: General Principles now circulating before the ALI.6 Yet, it is not there. The basic negligence provision drafted by Professor Schwartz is Section 3. It offers a three-element account of the tort: sec 3. Negligence Liability An actor is subject liability for negligent conduct that is a legal cause of physical harm. Section 3 is later qualified by Section 6, which carries the nominal title duty. It reads: sec 6. Duty Even if the defendant's negligent conduct is the legal cause of the plaintiffs physical harm, the [defendant] is not liable for that harm if the court determines that the defendant owes the plaintiff. Findings of are unusual, and are based on judicial recognition of special problems of principle or policy that justify the withholding of liability. Clearly, as described in Section 6, does not refer an element of the prima facie negligence case. Rather, it refers the failure of a defendant who is already presumed or found have committed the tort of negligence obtain a judicial exemption from the liability that a negligent actor ordinarily incurs.7 Likewise, although he intends them as alternatives Sections 3 and 6, Professor Perlman's Sections 101 and 105 offer a three-element account of negligence.8 Thus, according Section 101, a plaintiff complaining of injury need only show that the defendant failed to act reasonably avoid causing legally cognizable harm another.9 Section 105, like Section 6, then notes as a descriptive matter that in unusual circumstances courts will, for policy reasons, limit the liability that attaches conduct determined be negligent under Section 101. What has happened? Clearly, the Reporters have self-- consciously set out produce an account of negligence that evades the concept of the Hence: Duty is the element missing in Section Ts account of negligence. Section 4 carefully disassociates from breach because use of breach would imply the existence of a that has been breached.10 Section 6 characterizes the idea of under a as being unable obtain an exemption from liability.11 Sections 16 and 17 go great lengths describe classic cases-those raising the issues of duties warn and duties prevent harms caused by third parties-entirely in terms of fault rather than duty.12 Sections 101-104 restate cases that nearly every court treats as affirmative duty cases without mentioning the term in their black-letter provisions.13 Section 105, like Section 6, treats no duty exclusively mean no liability.14 It might seem surprising that two distinguished, fair-minded Reporters would conclude that the concept of is so problematic that it ought be excised even at the monumental cost of excluding the standard judicial account of the tort of negligence from the Third Restatement.15 In fact, it was quite predictable. From Holmes Green Prosser and now Perlman and Schwartz, one finds a steady current of skepticism about the element within torts scholarship, and a persistent effort among many academics downplay, recast, or eliminate its role in negligence. …