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

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The Restatement (Third) and the Place of Duty in Negligence Law Vanderbilt Law Review Volume 54 Issue 3 Issue 3 - Symposium: The John W. Wade Conference on the Third Restatement of Article 2 Torts 4-2001 The Restatement (Third) and the Place of Duty in Negligence Law John C.P. Goldberg Benjamin C. Zipursky Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Torts Commons Recommended Citation John C.P. Goldberg and Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vanderbilt Law Review 657 (2001) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/2 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Restatement (Third) and the Place of Duty in Negligence Law John C. P. Goldberg" Benjamin C. Zipursky" I. INTRODUCTION .................................................................. 658 II. RESTATEMENT (THIRD) §§ 3-17: PROFESSOR SCHVARTZ ON NEGLIGENCE ...................................................................... 664 A. Sections 3 and 6 as a General Account of Negli- gence ....................................................................... 665 B. Sections 3 to 17 as Limited to Accidents Causing PhysicalDamage .................................................... 674 1. The Description of the Domain of Sections 3-17 in the Reporter's Note Has No Stated Justification ................................................. 675 2. Inclusion of a Meaningful Conception of Duty is Necessary Even Assuming the Project Specified in the Reporter's Note ................... 678 a. Duty is Necessary to Restate Acci- dental Physical Damage Cases.......... 678 * Professor of Law, Vanderbilt University. B.A. 1983, Wesleyan University; M.Phil. (Poli- tics) 1985, University of Oxford; M.A. (Politics) 1989, Princeton University; J.D. 1991, New York University. ** Associate Professor of Law, Fordham University. B.A. 1982, Swarthmore College; Ph.D. (Philosophy) 1987, University of Pittsburgh; J.D. 1991, New York University. The authors wish to thank Professors and ALI Reporters Michael Green, Harvey Perlman, and Gary Schwartz for agreeing to participate in the John V. Wade Conference on the Third Restatement. We particu- larly wish to express our appreciation for Professor Schwartz's enormous efforts on behalf of the Restatement project, as well as his graciousness in responding to criticisms from us and other conferees. For invaluable comments on prior drafts, we thank Lisa Bressman, Jill Fisch, Abner Greene, Tom Grey, Steve Hetcher, Steve Heyman, Michael Martin, Robert Rasmussen, Tony Sebok, Ken Simons, and participants at the Wade Conference and at Faculty workshops at Ford- ham University School of Law and Boston University School of Law. Nicole Hyland and Jack Preis provided outstanding research assistance. 657 658 VANDERBILT LAWREVIEW [Vol. 54:3:657 b. Duty in Sections 16 and 17 ................ 680 c. Duty, Breach, and the Relationship Between Them ................................... 684 III. RESTATEMENT (THIRD) §§ 2A AND 101-105: PROFESSOR PERLMAN ON NEGLIGENCE ................................................. 687 IV. ASSESSING THE REPORTERS' DUTY SKEPTICISM ................. 692 V. DISTINGUISHING BETWEEN FOUR SENSES OF DUTY IN NEGLIGENCE LAW .............................................................. 698 A. Duty in Its Primary or "Obligation"Sense .............. 699 1. The Issue and Illustrations .......................... 699 2. Clarifying Duty in Its Obligation Sense ....... 705 B. Duty in its Alternative Senses ................................. 709 1. The Nexus Requirement ..................................... 709 2. Breach-as-a-Matter-of-Law ................................. 712 3. Exemption from the Operation of Negligence L aw .............................................................. 717 a. Nature of the Inquiry ............................... 717 b. Does Duty in its Obligation Sense Collapse into Duty in its Exemption Sense? ................ 720 VI. WHY DUTY OUGHT TO HAVE A PLACE IN NEGLIGENCE LA W ................................................................................... 723 A. Restating Negligence with Duty .............................. 724 B. A Rejoinder to Realists ........................................... 732 V II. CONCLUSION ...................................................................... 736 A PPENDIX .......................................................................... 737 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 duty of reasonable care and injured her by breaching that duty. Every state adheres to the four-element account,' with perhaps two exceptions. 2 That ac- 1. See Brushwitz v. Ezell, 757 So. 2d 423, 432 (Ala. 2000); Lyons v. Midnight Sun Transp. Servs., Inc, 928 P.2d 1202, 1204 (Alaska 1996); Taeger v. Catholic Family & Cmty., 995 P.2d 721, 730 (Ariz. Ct. App. 1999); Sharon P. v. Arman, Ltd., 989 P.2d 121, 125 (Cal. 1999); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997); RK Constructors, Inc. v. Fusco Corp., 650 A.2d 153, 155 (Conn. 1994); Bullock v. Nat'l City Mortgage Co., 735 A.2d 949, 952 (D.C. 1999); Ewing v. Sellinger, 758 So. 2d 1196, 1197 (Fla. Dist. Ct. App. 2000); Tuggle v. Helms, 499 S.E.2d 365, 367 (Ga. 1998); Tseu v. Jeyte, 962 P.2d 344, 350 (Haw. 1998); Coghlan v. Beta Theta Pi Fraternity, 987 P.2d 300, 311 (Idaho 1999); Ward v. K-Mart Corp., 554 N.E.2d 223, 226 (Ill. 1990); Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999); Timm v. Clement, 574 N.W.2d 368, 371 (Iowa Ct. App. 1997); Hesler v. Osawatomie State Hosp., 971 P.2d 2001] THE PLACE OFDUTYIN NEGLIGENCE LAW 659 count 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.0 Given the widespread adoption of the four-element test, one would have expected to 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 1169, 1174 (Kan. 1999); Helton v. Montgomery, 595 S.W.2d 257, 258 (Ky. CL App. 1980); Roberts v. Benoit, 605 So. 2d 1032, 1041 (La. 1991); Valentine v. On Target, Inc., 727 A.2d 947, 949 (Md. 1999); Lewis v. Knowlton, 1997 ME 12, 7, 688 A.2d 912, 913; Davis v. Westwood Group, 652 N.E.2d 567, 569 (Mass. 1995); Latham v. Nat'l Car Rental Syss., Inc., 608 N.W.2d 66, 71-72 (Mich. Ct. App. 2000); Lubbers v. Anderson, 539 N.W.2d 398, 401 (finn. 1995); Arona v. Smith, 98-CA-01360-SCT, 9 (Miss. 1999), 749 So. 2d 63, 66; Krause v. United States Truck Co., 787 S.W.2d 708, 710 (Mo. 1990); Cusenbary v. Mortensen, 987 P.2d 351, 355 (Mont. 1999); Divis v. Calrklift Inc., 590 N.W.2d 696, 701 (Neb. 1999); Manchenton v. Auto Leasing Corp., 605 A.2d 208, 213 (N.11. 1992); Weinberg v. Dinger, 524 A.2d 366, 373 (N.J. 1987); Alberts v. Schultz, 975 P.2d 1279, 1284 (N.M. 1999); Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 535 (N.Y. 1981); Scialabba v. Brandise Constr. Co., 921 P.2d 928, 930 (Nev. 1996); Holshouser v. Shaner Hotel Group Props., 518 S.E.2d 17, 22 (N.C. CL App. 1999); Hurt v. Freeland, 589 N.W.2d 551, 555 (N.D. 1999); Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989); Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, 10, 991 P.2d 1006, 1010 (Okla.1999); Ellis v. Sherman, 515 A.2d 1327, 1328 (Pa. 1986); Splendorio v. Bilray Demolition Co., 682 A.2d 461, 466 (R.I. 1996); Kleck- ley v. Northwestern Nat'l Cas. Co., 526 S.E.2d 218, 221 (S.C. 2000); Peterson v. Spink Elec. Coop., Inc., 1998 SD 60, 12, 578 N.W.2d 589, 591; Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998); Doe v. Boys Club, Inc., 907 S.W.2d 472, 477 (Tex.1995); Gerbich v. Numed Inc., 977 P.2d 1205, 1207 (Utah 1999); Haverly v. Kaytec, Inc., 738 A.2d 86, 91 (Vt. 1999); Austin v. Consolida- tion Coal Co., 501 S.E.2d 161, 163 (Va. 1998); Degel v. Majestic Mobile Manor, Inc., 914 P.2d 728, 731 (Wash. 1996) (en bane); State ex rel. Frazier v. Hrko, 510 S.E.2d 486, 491 (%. Va. 1998); Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233, 238 (Wis. 1998); Stroup v. Oedekoven, 995 P.2d 125, 130 (Wyo. 1999). 2. See Union Pac. R.R. v. Sharp, 952 S.W.2d. 658 (Ark. 1997) (negligence requires damage, breach of standard of care, and proximate cause); Fazzolari v. Portland Sch. Dist., 734 P.2d 1326, 1336 (Or. 1987) (en bane) (criticizing standard formulation as applied to a broad category of accident cases, and stating as an alternative that negligence is made out when a defendant's conduct is determined to have "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff'). 3. See NV. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 30, at 164-65 (5th ed. 1984); WILLIAML. PROSSER, HANDBOOK OFTHE LAW OFTORTS § 30, at 175 (1941). 4. DAN B. DOBBS, THE LAW OF TORTS §114, at 269 (2000). 5. See, e.g., RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 154 (7th ed. 2000); VICTOR E. SCHWARTZ ET AL., PROSSER, WADE AND SciARTz!S TORTS: CASES AND MATERIALS ON TORTS 130 (10th ed. 2000). 6. We say "two drafts" because, as Professors Perlman acknowledges, he and Professor Schwartz have separately drafted provisions that overlap considerably in coverage yet "depart[ ]' from one another in terminology and substance. See Memorandum from Harvey Perlman, to Advisers and Members Consultative Group, in RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES (Preliminary Draft No. 2, May 10, 2000) [hereinafter Preliminary Draft No. 2]. Pro- fessor Perlman's provisions are Sections 2A, 9A, and 101-05 of Preliminary Draft No. 2. Id. §§ 2A, 9A, 101-05.
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