The Duty Concept in Negligence Law: A Comment

I. CONFLICTING CONCEPTIONS OF DUTY As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (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.2 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 withholding of liability.3 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.4 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.5 More particularly, Goldberg and Zipursky argue that duty deserves pride of position along with injury, breach, and causation in a comprehensive, four-element framework of negligence laws And they proceed to enunciate a of duty as asking the question of whether defendant was obligated to be vigilant of the type of harm suffered by the plaintiff.7 This primary sense of duty-which they also refer to as an of duty8-in turn needs further clarification, according to Goldberg and Zipursky, because courts sometimes use the duty concept in ways that invoke at least three other ideas.9 These instances of duty in its alternative are: (1) whether there is an appropriate nexus between the defendant's breach and the duty the defendant owed to the plaintiff: in short, whether the breach of duty is a breach of duty owed to the plaintiff; (2) whether the plaintiffs case on breach is such that a court ought to rule that there is no breach as a matter of law; and (3) whether the broader policy implications of permitting plaintiff to recover justify creating an exemption from negligence liability.10 Nor is this the full extent of their critique. The Discussion Draft explicitly adopts a self-imposed limitation to cases of physical harm, as distinguished from claims for emotional distress and economic loss; and in addition, it eschews consideration of wellestablished categories of negligent harm that raise special issues, including professional responsibility (medical malpractice is a prominent example) and landowners liability. These limitations on scope, which also for the most part can be brought under the umbrella of duty-related limits, similarly come under critical attack from Goldberg and Zipursky.11 To them, a Restatement of negligence, so limited, is arbitrarily truncated. By contrast, their conception of duty would extend across-the-board to how the defendant was obligated to conduct himself, the type of harm he was obligated to guard against, and the class of persons to whom that obligation extends.12 Having come this far in sketching out conflicting doctrinal perspectives of the Discussion Draft and its present critics, it is time to pause and take a broader look at the lay of the land, before moving ahead to identify particular features of the landscape in a more discerning fashion. …