Journal Article

The Persistence of Tort Duty

Mootz, Francis J., III, Stover, Kaleigh M

2024

Overview

Tort Duty in the Restatements The American Law Institute produces restatements of the law that simultaneously reflect and advance the state of the common law. The overlapping use of foreseeability in each analysis should not lead courts to conflate duty and proximate cause into a generic inquiry into the foreseeability of harm suffered, leaving it to the jury to resolve as a question of fact. In 1968, the California Supreme Court in Rowland v. Christian rejected the baroque common law approach to special duty rules, declaring that all persons simply owe a general duty to others unless clear considerations of public policy dictate otherwise.\" A departure from this fundamental principle [of a general duty] involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.\"

• Publisher: American Bar Association
• Subject: Landowners / Liability / Liability (Law) / Negligence / Public policy / Skepticism / Tort law / Torts