Peter Choi, ‘The Duty of Care as a Duty in Rem’

Over the course of the twentieth century, the common law has lessened the duty of care — the threshold element of negligence liability — to a confused doctrine that is applied in multiple ways. Underlying this confusion and serving as a topic of extensive judicial and scholarly debate, is the question of how the relational dynamic between the plaintiff and the defendant at the time of the alleged tort bears on the issue of whether the defendant owed the plaintiff a duty of care.

This paper defends the Third Restatement’s “world-at-large” view of negligence law’s duty of care on the basis of a theory that conceptualizes that duty as a duty in rem — an obligation owed to people in general (rather than to some defined class) by virtue of every person’s ownership of some particular “thing”. This theory reifies personal freedom — the liberty every person has to act and use his property in the pursuit of his interests — to challenge the suggestion of Third Restatement critics that a “duty to the world” signifies a nihilistic view of the duty of care that offers no substantive concept of obligation and serves as a mere instrument for issuing extraneous, policy driven decisions. Contrary to the suggestion of these critics, this paper argues that properly conceived, a duty of care owed to the “world at large” is an obligation owed to people by virtue of the exclusive and moral dominion every person is entitled to exercise over his personal freedom. By measuring the scope of duty on the basis of the “thing” of personal freedom, an in rem conception of the duty of care provides the normative guidance necessary to facilitate the social interactions with which negligence law is primarily concerned — the arm’s-length interactions of a vast and anonymous network of people who necessarily impose risks of physical harm on each other in pursing their various ends.

Choi, Peter J., The Duty of Care as a Duty in Rem (August 7, 2014). 4 JL: Periodical Laboratory of Legal Scholarship (2 New Voices) – October 2014 forthcoming.

First posted 2014-08-08 06:12:47

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