Abstract:
Courts misuse the ‘no duty’ doctrine in torts cases when they really mean there has been ‘no breach’ of the duty of care. ‘No duty’ should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to ‘duty’. It is relevant to ‘breach’. Relying on the ‘duty’ doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.
Sugarman, Stephen D, Misusing the ‘No Duty’ Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions (October 31, 2015).
First posted 2015-11-16 06:57:05
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