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A new look at duty in tort law: rehabilitating foreseeability and related themes.

This article addresses the subtle yet turbulent “duty
wars” currently raging with respect to the conceptual nature of
duty in tort law. The scholars have thus far divided principally into
three camps, and the courts have increasingly been taking their cue from
this scholarship and altering their previously settled notions of the
duty element. The main dispute has been over the role of foreseeability
in the duty analysis. This article critiques the principal approaches
taken in the literature, demonstrating, for example, why the vision of
duty articulated in the new Restatement (Third) of Torts and represented
by one of the scholarly camps–“purging” foreseeability from
duty–is incoherent. The article develops the framework for a different,
positive conception of duty, a policy, not obligation, centered view, in
which foreseeability is itself a normative policy sub-element different
in nature from the sort of foreseeability that underlies the jury’s
breach and proximate cause findings.

The methodological insight that engenders this conception concerns
the “self-reflexive” nature of the court’s engagement
with questions of law, in particular the duty question. While the
community asks the first-order question what is the obligation we owe or
should owe one another, the court self-reflexively addresses the
higher-order questions of how it should rule on the duty issue, and what
will be the impact of its ruling on the community and society. At those
times, courts implicitly, and sometimes explicitly, speak of themselves
and grapple with the judicial system’s institutional role,
legitimacy, and limitations. Appreciating the court’s
self-reflexive character enables us to show why, as an analytic matter,
the inclusion of foreseeability in the court’s duty analysis does
not usurp the jury’s role. This insight also grounds the new
argument presented in this article for why duty arises from policy
rather than obligation.

 I. INTRODUCTION

 II. OVERVIEW OF THE DUTY DEBATE

III. A CRITIQUE OF GOLDBERG AND ZIPURSKY'S VERY
     RELATIONAL VIEW OF DUTY
     A. Goldberg and Zipursky's Obligation-Centered View of
        Duty
     B. A New Argument In Favor of the Policy Approach to
        Duty

 IV. A CRITIQUE OF ESPER AND KEATING'S SOMEWHAT
     RELATIONAL VIEW OF DUTY
     A. Esper and Keating's Weak Relational View of Duty
     B. Why the Obligation View Increases Particularized
     Duty Rulings
     C. Efficient, Particularized Duty Analysis is Not All Bad..
     D. Accounting for the Courts' Self-Reflexiveness

  V. A CRITIQUE OF CARDI AND GREEN'S NON-RELATIONAL
     VIEW OF DUTY
     A. Cardi and Green's Alignment with the Restatement
        (Third) of Torts
     B. Rehabilitating Foreseeability--Why the Third
        Restatement's Vision of Duty is Incoherent
     C. Why Foreseeability in Duty Does Not Encroach Upon
        the Jury's Role

 VI. CONCLUSION

I. INTRODUCTION

After long inattention, the concept of duty in tort law is gaining
currency. (1) Some scholars have been waging subtle yet turbulent
“duty wars.” (2) Outside of the academy, tort and products
liability litigants and their amicus supporters, sometimes motivated by
the scholarship, increasingly dispute the issues of whether one actor
owes another a duty and of which duty standard to apply. (3) The prior
and logically independent question is how to decide these matters, a
question that must provoke reflection about the institutional concerns
characterizing duty analysis, and decision-making processes generally.
This sort of reflection has thus far been meager in the duty wars.

Aiming to correct this methodological lapse, this article proceeds
critically and divides according to the three main camps in the contest
over the nature of duty in tort law. The teams leading much of the duty
debate line up in the following way. John C.P. Goldberg and Benjamin C.
Zipursky start with the position that duty is primarily an obligation to
provide care with regard to individuals specifically resembling the
plaintiff and that, by virtue of this strongly relational and
obligation-centered view, the duty concept is an essential and robust
component in tort controversies. (4) Dilan A. Esper and Gregory C.
Keating offer a more balanced counterpoint, arguing that instrumental
considerations such as deterrence play a somewhat greater role in duty
determinations than Goldberg and Zipursky allow, and that duty is only
weakly relational–and should not be applied in an overly particularized
manner–because it runs broadly to any individuals who may foreseeably
be harmed. (5) Meanwhile, W. Jonathan Cardi and Michael D. Green follow
the lead of the Restatement (Third) of Torts in saying that duty derives
from a mixture of obligation and instrumental objectives, but that
foreseeability should be purged from the analysis. (6)

This article summons its new perspective about the legal
decision-making process by critiquing the approaches taken by Goldberg
and Zipursky, Esper and Keating, and Cardi and Green. (7) As an
explanatory prelude, Part II offers an overview of the larger discussion
thus far in progress, and of several of the pivotal dualities that have
coursed through the debate. (8) Many of the issues discussed in this
Part are likely to remain unresolved in the long run notwithstanding the
various commentators’ best efforts.

The divide will remain between those emphasizing that duty must
consist in natural obligation flowing intelligibly out of the fabric of
our liberal tradition, (9) and those reducing duty, at least to some
significant extent, to a discretionary policy outcome, one that is often
aimed at wealth- or utility-maximization. (10) Part III expresses
dissatisfaction with Goldberg and Zipursky’s adherence to the
former approach. (11) That Part offers a new perspective on why legal
duty, as courts announce it, is not constituted primarily by moral
obligation, but is most clearly explained as an instrumental,
policy-driven element in tort cases. (12) This argument finds grounding
in the article’s methodological thesis that courts’
decision-making process is self-reflexive at some important level, and
hence that in deciding duty courts say something about law’s
institutional role, capacities, and limitations.

Part IV critiques the views offered by the second duty team, Esper
and Keating, and shows why their approach similarly under appreciates
the ways in which judicial law articulation expresses the tort
system’s regulatory and efficiency aims. (13) The emerging positive
analysis explains that the judicial system’s division of labor as
between courts, which decide duty, and juries, which address breach, is
best understood in terms of the self-reflexive roles assumed on each
side. (14) Juries as well as courts, in other words, speak of themselves
and of their communities and institutions, respectively. While helping
us to generally navigate the duty dilemma, this understanding provides
an important analytical tool for explaining, for instance, why the sort
of particularized duty rulings that so vex Esper and Keating may
sometimes be appropriate. (15)

The team of Cardi and Green have been the most eloquent
spokespersons on behalf of the duty conception announced in the
Restatement (Third) of Torts. (16) Their principal focus has been on the
most clawing dispute in the duty wars, namely, the role of
foreseeability in the duty determination. (17) In support of the Third
Restatement’s perspective, Cardi and Green maintain that the
relational view of duty–one that includes the foreseeability
subelement–is “inferior” for a number of reasons. (18) Part
V, centering on a critique of Cardi and Green’s work, shows that
the Restatement’s purging of foreseeability renders its conception
of duty incoherent. (19) Appreciating courts’ self-reflexive
character enables us to show why, as an analytic matter, the inclusion
of foreseeability in the judicial duty analysis does not usurp the
jury’s role.

The main hope for this article is that the framework for a
coherent, positive conception of duty emerges from the critique of the
main duty war camps. The article concludes that the courts’
grappling with duty is ultimately instrumental and policy-laden. The
foreseeability factor provides the court with a central policy
constituent within the larger duty determination. Exclusion of this
factor would be arbitrary and loose the duty analysis in tort law from
its moorings.

II. OVERVIEW OF THE DUTY DEBATE

Because duty is considered strictly a legal affair, the court
rather than the fact-finder decides both how and what to decide. (20)
This helps judges manage the legal system. But some say such large
discretion also reduces duty to a “pious aphorism[]” detached
from principled analysis. (21) If judges’ threshold rulings know no
bounds, then perhaps it is best to cull out inappropriate factors they
may .consider, and perhaps foreseeability is a prime candidate.
Foreseeability, after all, appears to be inherently fact- and
case-specific, and hence not conducive to development of the sort of
general principles with which duty is concerned. (22) The Restatement
(Third) of Torts aligns with these intuitions. (23)

The controversy over the role of foreseeability in tort duty goes
back to Palsgraf, (24) which smeared the cat out in equal parts, sort
of. (25) Cardozo’s majority held that lack of foreseeability meant
no duty. (26) Judge Andrews objected that “lilt is the act itself,
not the intent of the actor, that is important.” (27) Getting
scienter out of the discussion would have left open the possibility that
the railroad was liable for all harm caused by its agents’
negligence. (28) But, especially in the contemporary tort reform
climate, courts also extract foreseeability from duty in rationalizing
no-duty outcomes. (29)

Eliminating the foreseeability sub-element of the duty analysis is
a facially neutral move. (30) The logical pull resulting from such a
doctrinal shift, however, is generally toward diminished accountability.
Consider first a duty standard that includes the foreseeability
component; when the underlying facts indicate that a harmful outcome was
generally foreseeable, the pull is in favor of the lawsuit surviving the
initial judicial oversight. (31) When, on the other hand, harm was not
foreseeable, the judge will tend to conclude there is no duty. (32) But
even if the judge concludes the harm was foreseeable, the case may be
eliminated at a later stage, namely, during the breach-of-duty or
proximate-cause determination. (33)

Next consider a duty standard that does not include the
foreseeability component. Absent this sub-element, a large swath of
cases in which an injurious result was foreseeable may nevertheless be
eliminated by the court at the gateway without benefit of jury
consideration. This is because the foreseeability of the harm would
count for nothing in the initial judicial assessment of a dismissal
motion. Where, however, harm was not foreseeable, those cases, once
again, would in all events not survive the breach-of-duty or
proximate-cause evaluation. (34) The net loss of actionable cases is
evident.

This result-minded vantage point is important to understanding the
practical effect of any particular theoretical approach and sometimes
may reveal the agendas underlying the competing duty analyses. Weighing
the benefits against the detriments of enhanced versus diminished access
to compensatory relief is, however, a separate matter from the raw
project of conceptualizing duty. This article takes a new look at the
concept, mostly leaving legislative concerns to interested advocates.

On other fronts, a central, albeit fairly academic question has
been whether the duty element in tort law flows principally from
categorical moral obligations that are, or ought to be, incorporated
into tort jurisprudence or whether courts for the most part resolve, or
ought to resolve, the duty question based on instrumentalist concerns
that privilege societal welfare. (35) Those in the former camp tend to
argue that the law of torts is most beneficially seen as the ordering of
a set of individual entitlements to various means for accomplishing
one’s private purposes, (36) while a compelling contrary view is
that tort law aims, at least implicitly, at efficient allocations of
loss and general utility. (37) The article suggests a new argument in
favor of the view that duty is primarily a matter of policy rather than
obligation.

Other controversies that have arisen in debating the duty concept,
perhaps more apposite to law’s practice, have included the
following: whether duty should be viewed in general terms, or
constructed on a case-by-case basis; (38) whether injury to a right
versus foreseeable loss constitutes the basis of negligence liability;
(39) and whether duty is “relational”–that is, defined by the
duty-to-whom consideration–or is instead act centered. (40) This
article touches on these issues to the extent that they are relevant to
its critical analysis and positive thesis.

III. A CRITIQUE OF GOLDBERG AND ZIPURSKY’S VERY RELATIONAL
VIEW OF DUTY

A. Goldberg and Zipursky’s Obligation-Centered View of Duty

In their defining critique published in the Vanderbilt Law
Review’s 2001 Symposium on the then-proposed Restatement (Third) of
Torts, Goldberg and Zipursky objected to the exclusion of duty as a
black letter element in the definition of negligence. (41) In accord
with the ultimately published volume, (42) section 3 in the Discussion
Draft sparsely provided that “[a]n actor is subject to liability
for negligent conduct that is a legal cause of physical harm.” (43)
Section 6 then admitted duty through the back door, as a limiting
device, allowing that:

   [e]ven if the defendant's negligent conduct is the legal cause
   of the plaintiffs physical harm, the defendant 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. (44)

Crediting the legal realism of Holmes (45) and Prosser (46) for
inaugurating a duty skepticism, (47) Goldberg and Zipursky determine
that this instrumentalist approach is off base because “concepts of
right and duty are regarded as essential analytical tools among even the
jurisprudentially ‘hard-headed.'” (48) As this quotation
suggests, their paper is primarily concerned with the nature of
restatements of the law. So Goldberg and Zipursky puzzle over whether it
may be legitimate or useful for such a work to depart from
“ordinary judicial usage,” which, of course, is replete with
talk of duty. (49)

When courts speak of duty, say Goldberg and Zipursky, they
ordinarily use the term to refer to an existing obligation of care owed
by the defendant to people within the particular plaintiffs class. (50)
In other words, the “primary sense” in which courts use duty
is its obligation sense. (51) They acknowledge that sometimes, though,
jurists resolve duty issues by applying the term in a different way.
Goldberg and Zipursky identify three such alternative senses. (52)

Apart from obligation, the second judicial use of the term
“duty” is much like the one described in section 6 of the
Discussion Draft. In these cases, courts engage in no-duty reasoning by
finding an insufficient, or overly remote, “nexus” between the
parties. The defendant’s conduct may have constituted a breach of a
general duty, but not one running to the particular plaintiff. (53) The
nexus requirement is featured in cases such as Edwards v. Honeywell,
Inc., (54) wherein Chief Judge Richard A. Posner used the duty concept
to preclude liability on the part of a fire alarm system seller to the
estate of a firefighter who arrived belatedly at the purchaser’s
home. Honeywell, said Judge Posner, “was entitled to dismissal of
the suit because it had no duty of care to firefighters engaged in
fighting a fire on its customer’s premise.” (55)

The third–and second alternative–sense of duty discussed by
Goldberg and Zipursky arises from the courts’ occasional efforts
“surreptitiously to shrink the scope of the rule stating that the
breach issue ordinarily is for the jury.” (56) In other words,
courts sometimes decide breach issues “under the guise” of
deciding the question of duty in its primary sense. (57) This happens,
for the most part, when courts dismiss cases on a lack of duty ground
based on the unforeseeability of the particular sort of accident or
other injurious incident. (58) According to Goldberg and Zipursky, in
these cases the defendant will have owed a duty of care to individuals
such as the plaintiff, but their conduct cannot be deemed to have been
unreasonable because the risk of injury was small or not sufficiently
apparent. (59) Goldberg and Zipursky suggest, as an heuristic device,
that “[w]hen courts find themselves talking about ‘duty’
at a very high level of specificity, they may well be talking not about
duty at all, but about breach.” (60)

Finally, Goldberg and Zipursky acknowledge a fourth sense of
“duty”–the “exemption” sense–which aligns with
Posner’s policy-based understanding that, in the nineteenth and
twentieth centuries, “as liability for negligence expanded, the
judges felt a need to place limitations on its scope and to rein in
juries, and the concept of duty was revived to name some of these
limitations and to exert some control over juries.” (61) For
Goldberg and Zipursky, these sorts of decisions, albeit “only one
part of the story,” (62) hold that even if the defendant owed a
duty to plaintiff in the primary obligation sense of the term,
“there are special reasons of policy or principle not to permit the
cause of action to go forward,” (63) such as the potentially
excessive litigation and liability burden that might be imposed upon a
certain type of defendant. (64)

Recognizing the importance of the instrumentalist view of duty–the
fourth sense of duty just noted–Goldberg and Zipursky give some good
reasons why the obligation sense does not simply “collapse”
into the exemption sense. (65) For one thing, courts do often indeed
speak of duty as obligation, and restatements ought to take their cue
from the raw data to be restated. (66) Also, courts may sometimes
determine a duty exists even when their best policy sense indicates it
is better not to have liability. (67) Next, structured concepts like
those underlying the obligation sense of duty are “superior”
to policy judgments because they tend to be more “law-like”;
in this respect, obligation but not policy engenders predictability,
stability, the capacity to offer guidance, and also a buffer against
vulnerability to political pressure. (68)

Goldberg and Zipursky do not offer much in the way of explaining
what “obligation” means, or what it derives from. They
cryptically state that duty as obligation links fault and liability as a
matter of legal, not moral, principle because “it is only duties
recognized by courts that generate liability.” (69) But Alan Calnan
says what Goldberg and Zipursky roughly mean. Calnan largely adopts
Ronald Dworkin’s view that duty requires a principled analysis, and
grounds this analysis in “foundational principles–most especially,
liberal-moral principles rooted in American history, law, culture, and
values.” (70) And, like Goldberg and Zipursky, Calnan does not take
a deontological view grounding duty in “immutable moral
obligation.” (71) Rather, as he puts it, in the end, the judge
improvises a “substratum of normative requirements, tapping into
cultural traditions, local customs, or community mores.” (72) In
like manner, Goldberg and Zipursky have earlier described duty as
“the set of obligations that matches, roughly, what citizens
believe about the care they owe one another.” (73)

B. A New Argument in Favor of the Policy Approach to Duty

Others have criticized Goldberg and Zipursky’s approach. In
another symposium piece, for instance, Robert L. Rabin explains that,
rather than diminishing predictability, stability, and the capacity to
guide, the policy-based exemption sense of duty engenders quite the
opposite, namely, bright line rules that enhance tort law’s
certainty. (74) Indeed, “predictability is in fact their raison
d’etre.” (75)

Patrick J. Kelley bemoans the substantive poverty of Goldberg and
Zipursky’s notion that duty in its primary obligation sense serves
as the legal nexus between fault and liability when the courts so
recognize. (76) He argues that “this argument solves the problem of
form in only a trivial sense, by showing a plausible logical
relationship between duty, unreasonable conduct, and liability.”
(77) So Goldberg and Zipursky’s notion is “a purely formal
solution to the rule-of-law problem with duty, as it works whatever
substantive content the courts give to ‘duty,’ for whatever
reason.” (78)

Other criticisms of Goldberg and Zipursky’s approach by key
duty wars scholars are discussed below. (79) Before reaching those,
however, we suggest a new argument in response to the widely held view
voiced by Goldberg and Zipursky that duty primarily maps obligation, not
policy.

The simple beginning is that courts decide some issues and juries
determine others. According to the well-worn idea, “the controlling
distinction between the power of the court and that of the jury is that
the former is the power to determine the law and the latter to determine
the facts.” (80) This distinction arises from the different
competencies of the judge and jury, the former knowing how to navigate
technical or complex legal principles and the latter being immersed in
its community’s routines and shared experiences. (81) The
categories of law and fact blur at the edges, but conceptualizing them
distinctly has traditionally served an important administrative function
by virtue of which authority over legal outcomes is distributed in a way
that helps stabilize law’s legitimacy. (82)

A salient notion is that law’s realm, unlike fact’s,
involves the articulation of propositions that effect not only the
immediate case “but all others that fall within its terms.”
(83) As Monaghan observes, declarations of law, in some strict sense,
thereby trade in “conclusions about the existence and content of
governing legal rules, standards, and principles. The important point
about law is that it yields a proposition that is general in
character.” (84) Factual findings, by contrast, are case-specific
statements not about the truth of the matter in some absolute sense but
rather about the cogence of the evidence. (85)

The jury’s ultimate function is to apply the law, as stated by
the judge, to the facts. Addressing whether, for example, a defendant
exercised reasonable care in shipping a dangerous product without
warning, the jury engages in “ad hoc norm elaboration” and a
complex psychological process of mining and applying community
standards. (86) Jury outcomes tend predominantly to reflect local norms
of behavior, and on occasion when the law may seem at odds with those
norms, the jury’s allegiance may lean toward the norm rather than
the rule. (87)

But even all of this begs the question somewhat. The pronouncements
courts make are at least somewhat self-reflexive; the courts not only
are competent to interpret, and do interpret, the constitutional and
legal rules at play in controversies over which they have subject-matter
jurisdiction, (88) but they do so by means of saying something about
themselves as an institution. The doctrine of stare decisis and the
common law method of constructing authority do not necessarily involve
self-reflexive exercises, but create a fertile ground for the
courts’ evolving institutional self-awareness. (89)

The self-reflexive impulse has also historically grounded the
courts in their development of an embodied legal philosophy. At the
outset of his magisterial two-volume study of American legal history,
for instance, Morton J. Horwitz noted the historical tendency of judges
“with some regularity to reason about the social consequences of
particular legal rules.” (90) The New York court in 1805 refused to
apply the common law rule allowing a downstream mill owner to recover
for water flow obstructions occurring upstream, because doing so would
deprive the public “of the benefit which always attends competition
and rivalry.” (91) The same year, in a federal case before the
Circuit Court for the District of Pennsylvania, Judge Richard Peters
remarked, “I believe with Professor Smith, in his ‘Wealth of
Nations,’ … that distributing the burthen of losses, among the
greater number, to prevent the ruin of a few, or of an individual, is
most conformable to the principles of insurance, and most conducive to
the general prosperity of commerce.” (92) Scholars sometimes
underplay this aspect of common law methodology by linking
self-reflexivity somewhat exclusively with post-modernism. (93)

A court’s talk about itself, and about the anticipated
societal impacts of its decision-making, necessarily transcends the case
before it. This is not to say, of course, that courts go awry in making
statements about specific cases. Law school pedagogy aims at stripping
the philosophical fat off of future jurists’ succulent
undergraduate minds. Then, too, the court may be the trier of fact in
any case. (94) The judge is then expected to act as a lay fact-finder,
drawing upon everyday experiences and community norms, even as it
becomes less important to rigidly apply protective evidentiary rules.
(95)

As the court speaks self-reflexively in its role as guardian of the
law, so to the jury (or judge as fact-finder) speaks of its community
when rendering a verdict. (96) The fact-finder aims not only for a
case-specific approximation of the truth of the matter, but also aims at
recognizing and giving voice to various community norms. (97) There are
limitations placed upon the ability of the fact-finder to resort to
community values in some circumstances, particularly where any such
appeal may undermine the need for case-specific findings. (98) But
overall, the community’s general norms are a constituent in the
fact-finder’s deliberation about the reasonableness of a
litigant’s conduct, and a conventional ingredient in the American
jury system.

Now if duty in its primary sense connotes obligation–that which
matches roughly, “what citizens believe about the care they owe one
another,” as Goldberg and Zipursky say (99)–why is it necessary,
or a legal desideratum, or even beneficial, for courts but not juries to
control this issue? The notion that courts decide general principles
while juries address only case-specific findings is neither accurate, as
shown, nor integral. What prevents the jury from doing a good and
legitimate job of determining, based on community norms and collective
experiences, whether individuals in the defendant’s circumstance
owe a duty of care to other individuals such as the plaintiff?

Let’s look at a case that Goldberg and Zipursky hold out as
“present[ing] the primary duty issue in its cleanest form,”
Harper v. Herman. (100) For Goldberg and Zipursky, it is relatively
clear in Harper what the defendant’s prudent course of action would
have been, and the question squarely presented is whether he had an
obligation to persons such as the plaintiff to pursue that course. (101)
In that case, some guests, including twenty-year-old Harper, joined
Herman on his boat. (102) When the boat set anchor in waters Herman knew
to be shallow, Harper suddenly dove in, severing his spinal cord. (103)
The court ruled that, because Harper was a responsible adult who may
reasonably be expected to appreciate the “inherent dangers of
water,” Herman had no affirmative duty to warn him that the water
might be shallow. (104)

There are all sorts of people in a community. Some own boats, many
own other sorts of property, most have guests on occasion, and most are
themselves guests from time to time. If duty in its primary sense is a
matter of obligation, raising principally questions of community norms
and beliefs, then it seems the jury could have determined whether Herman
owed Harper a duty to warn. The Minnesota Supreme Court considered, for
instance, whether Harper may have been “particularly
vulnerable,” may have “lacked the ability to protect
himself,” or may have “expected any protection from
Herman.” (105) These being constituent sub-issues within the
court’s duty analysis, and qualitatively similar to issues normally
addressed by the jury, there seems little pull in the direction of
allocating such matters exclusively to the court.

While scholars fret over the nature of duty, everyone agrees that
duty is a legal issue to be decided by the court. Why not begin the
analysis, then, with a known quantity rather than with an obscure
conceptual dilemma? If we stipulate that duty–unlike breach, causation,
or harm–is a legal question uniquely suited for judicial determination,
the most reasonable explanation should be that duty issues are indeed
different from questions arising from the other negligence elements. The
difference is one between duty’s policy-related nature, which
implicitly or explicitly considers institutional limitations and the
judiciary’s domain, and the factual nature of reasonableness of
conduct, which derives from ad-hoc norm elaboration and community
standards of care.

What confronted the Harper court was not, in the main, an abstract
conception of obligation as it may have evolved historically in the
American cultural tradition, (106) although that concept may have had
some play. Rather, the more pressing and forward-looking matter was
whether the court should welcome institutional responsibility for
inaugurating a regime that discouraged community members from using
their property (whether owned or rented, real or personal) freely for
social purposes. A duty finding, and the consequent liability, would
effectively impose a tax upon such activities as might engender rescue
opportunities. (107) That the court would also weigh the Dworkinian
“fit” of the case’s outcome to law’s ongoing
representation of community values, (108) a higher-order inquiry
implicating policy and institutional self-reflection, is consistent with
this paper’s thesis.

Policy approaches and commitments develop over time. The elegant
Dworkinian ideas of horizontal and vertical integrity, the
interpretations by which, in other words, tort duty declarations
“fit[] and justi[fy]” present values, doctrines, and
structures, as well as historical traditions, have no necessary or
exclusive connection to the obligation view of duty. (109) An
interpretive explanation centered on horizontal and vertical coherence
is not itself an argument for any particular conception of duty, but
rather helps demystify either the obligation or the instrumentalist
understanding. Fit and justification constraints discipline courts in
their tweaking of the policy commitments underlying duty decisions.
(110)

IV. A CRITIQUE OF ESPER AND KEATING’S SOMEWHAT RELATIONAL VIEW
OF DUTY

A. Esper and Keating’s Weak Relational View of Duty

Esper and Keating create the second major front in the duty wars.
They define the divide between the court’s legal duty realm and the
jury’s factual realm as one between law articulation and law
application. (111) Courts, in other words, articulate the legal
standard, whereas juries apply that standard to the facts of the case.
(112) That, leastwise, is the scheme of things. The unfortunate reality,
say Esper and Keating, is that courts have been abdicating their
judicial obligation and usurping the jury’s role by issuing overly
particularized rulings in the name of duty to attain preferred outcomes,
a trend enabled by intellectual dishonesty. (113)

Esper and Keating agree with Goldberg and Zipursky that law’s
artificial duty of reasonable care derives from “a natural moral
obligation to respect–[or] not to harm–other people and their
property.” (114) By issuing case-specific duty rulings, and by
thereby tending to hold that D had no duty to do X, Y, and Z in
circumstances in which [for all], [PHI], and [PSI] narrowly obtain,
courts issue no-breach-as-a-matter-of-law rulings disguised as no-duty
rulings. (115) This practice devalues the physical integrity of the
person by carving out an expanding no-duty realm that increasingly
immunizes defendants from accountability, and, in effect, permits
interests in real property and economic activity to swallow tort
concerns. (116)

Esper and Keating want law to assert that D has a duty to act
reasonably in relation to those whom D’s conduct may foreseeably
imperil. (117) This provides the correct, rather weak relational concept
of duty; in this articulation, foreseeability gives the minimal
relational condition. (118) Esper and Keating’s view is weakly
relational because foreseeability stretches duty broadly across classes
of individuals, without much concern for their local positions and
activities. In contrast, Goldberg and Zipursky believe that duty is
strongly relational, a function of plaintiffs’ particularized
relations with defendants, and they concomitantly view wrongdoing as
personal, “a matter of a wrong done to this particular plaintiff by
this particular defendant.” (119)

Esper and Keating refuse to join Goldberg and Zipursky in
renouncing instrumentalism nearly wholesale in favor of obligation.
Instead, they find a place for instrumental considerations in negligence
law, notably when considering the extent to which liability may promote
deterrent efficiency. (120) While agreeing that the tort scheme
accommodates a plurality of values, however, Esper and Keating’s
principal view is that instrumentalism “cannot capture” the
fundamental moral sentiments underlying this area of the law. (121) Tort
law is primarily motivated by the resentment people feel about harms
wrongfully inflicted, and talk about accident prevention costs and
efficient loss allocation “denies the intrinsic value of
persons.” (122)

B. Why the Obligation View Increases Particularized Duty Rulings

Esper and Keating’s perspective is enticing. A tight, elegant
view unfolds; there is a moral obligation to avoid foreseeable harm.
Duty is primarily a matter of moral obligation, not instrumental policy
considerations. Therefore, foreseeability is naturally a constituent of
duty–at least in a minimal, relational sense–and duty is an expansive
element rarely in need of particularized discussion in cases.

The problem is that this view is not adequately descriptive of the
structure of American tort law. For instance, Esper and Keating agree
with Goldberg and Zipursky “that legal obligation tracks moral
obligation,” (123) but acknowledge that legal obligation “can
also be articulated in ways that conflict with and undermine our moral
obligations.” (124) Most notorious is the rescue construct. As
Esper and Keating say, that duty tracks moral obligation is importantly
qualified by, inter alia, ‘”the absence of a duty to attempt
an easy rescue of a helpless stranger.'” (125)

Otherwise, the rescue paradigm falls squarely within Esper and
Keating’s view of duty. Esper and Keating do not adequately grapple
with this departure from their understanding of duty, and their saving
some room in negligence law for instrumental considerations does not
explain why moral principle is subordinate to policy in this area.
Generally, they take as a given that the overlap of moral legal duty and
moral principle in many other scenarios must reflect the priority of
individual right and the inviolability of persons over instrumental
policy and societal benefit. (126)

It is significant that the traditional rescue paradigm–involving
the “easy rescue of a helpless stranger” (127)–barely sets
the minimal no-duty armature in today’s tort reform climate.
Advocates of extravagant constriction of tort plaintiffs’
compensatory rights seek an ever-expanding rescue construct. (128) To
the extent that these sorts of initiatives succeed, then even by Esper
and Keating’s own terms, in this circumscribed area of tort
jurisprudence, policy-based duty determinations swallow the whole.

For law’s purposes, the rescue concept is a theoretical
construct, and therefore only those potential rescuers falling within
the theoretical parameters qualify for the no-duty defense. (129)
However, this doctrine gives the courts empirical control over Esper and
Keating’s philosophical argument, which concedes policy’s
priority over principle in rescue determinations. And to the extent that
courts increasingly address expansive rescue claims in a variety of tort
settings, the explicit focus is equivalently on policy argument. (130)

In other respects, Esper and Keating revisit Keating’s prior
argument that risks of death and devastating harm are not suitably
offset by “taking only efficient or cost-justified risk precautions
against such risks,” (131) that “[w]hen everything is given a
price, everything is fungible with everything else at some ratio of
exchange,” (132) and that reliance upon “the morality of the
market … denies that some goods–like life–are more valuable than
others–like convenience or fine wine.” (133) In these respects,
Esper and Keating’s dissatisfaction with the policy-based approach
to duty is marred not so much by its failure to appreciate
instrumentalism’s capability to make the injured plaintiff whole,
as by a sort of naivete about the capability of non-instrumental law to
accomplish this. Although it seems counterintuitive that an individual
who has suffered devastating harm would not be worse off once
compensated, the notion of being made whole by virtue of compensatory
payments is the language of both law and economics. (134) Yet, damages
may be inadequate in either event, even discounting for the risk of harm
less than one. And incommensurabilities may prevent any charting of
indifference, at least ex ante, to loss of well-being versus legal
compensatory relief.

This, however, is not an argument for or against the instrumental
view of duty. In fact, in this portion of their paper, Esper and Keating
locate the divide within negligence law in toto, and not specifically
within the duty debate. (135) It seems that by Esper and Keating’s
reckoning, whether a defendant has taken sufficient precaution, however
this is quantified, is a question of breach and not duty. (136) After
all, it is they who protest particularized duty determinations.

But also overlooked by Esper and Keating, it is simplistic to
assume that imposing a duty to take inefficient precautions would merely
result in enhanced protections for the potential victim’s
well-being. Rather, included within the condition defining that
individual’s well-being must be the opportunity to partake of the
defendant’s presence, activity, or product, inclusive of
cost-justified risk precautions. The actors have choices, and the duty
on the part of one of them to subsidize the other without a calculable
probability of benefit–and indeed with a likelihood of loss–would
mostly motivate her to do otherwise. This would not obviously benefit
the potential victim, would not reflect the choice she would make, and
would most likely diminish the welfare of the class of similarly
situated individuals.

Nor does it appear that Esper and Keating view the privileging of
moral over policy principles as relevant to the undue particularization
of duty rulings. They note that the heart of this concern about
case-specific duty determinations “lies elsewhere,” namely,
with Goldberg and Zipursky’s strongly relational view of duty, by
which obligations “run from this named defendant to this named
plaintiff.” (137) But an open question, not addressed by Esper and
Keating, is whether the moral obligation perspective may actually
increase the odds of particularized duty rulings. To a degree, policy is
inherently generalized, and to a degree, as well, moral considerations
focus on the validity of norms in concrete cases. (138)

The tendency toward particularity of decision-making is conspicuous
in contexts that expressly claim privilege for moral or natural
obligation. The communal pledge binding individuals to their specific
society, and the moral particularism that this signifies, has been
important in the history of morality. (139) For the moral particularist,
the moral relevance of any feature depends on the context of the one
case, features thereby have variable relevance, and “a feature that
is a reason in one case may be no reason at all, or an opposite reason,
in another.” (140) By this view, moral considerations are decided
“on a case by case basis.” (141) Biblically, it is a moral
duty to fight against that regime (Hittites, Amorites, Canaanites,
Perizzites, Hivites, Jebusites, et al.). (142) And in the rabbinic
concept of morality, “[d]uties are relative to circumstances, to
persons, [and] to times.” (143)

Interestingly, Esper and Keating believe Richard Posner’s
cost-benefit analysis in Davis v. Consolidated Rail Corp., (144) based
on the Hand Formula, convincing on the point that “the question to
be asked is not whether injury to the plaintiff himself might reasonably
have been foreseen,” but rather injury to someone generally. (145)
Although Esper and Keating say that Posner’s “economic
conception of negligence … is properly criticized as not
relational”–in that it “rejects the idea of duty as
obligation to other people”–they acknowledge that this approach
does not “impair Posner’s account of the ‘calculus of
risk’ … [because he] is capable of fine lawyering.” (146)
But perhaps it is his perspicacious handling of this issue that makes
Posner capable of fine lawyering. Davis counters not only a
particularized idea of duty but also the view that “instrumentalism
cannot capture” the fundamental “moral sentiments”
underlying tort law. (147)

C. Efficient, Particularized Duty Analysis is Not All Bad

Important aspects of Esper and Keating’s analysis tend to
homogenize duty’s constituent factors. Rhetorically, this approach
is coherent, but it may ultimately result in a confusion of categories
and concepts. Duty is typically seen as “a bifurcated element [in
tort actions], consisting of what we shall term duty A (duty to
whom),” (148) the relational term, (149) “and duty B (duty to
do what),” (150) the act centered term. (l51)

Bifurcation of the duty concept promotes analytic clarity and
efficient outcomes. (152) Foreseeability has typically been deemed a
sub-element within each prong. Foreseeability is by its nature neither
exclusively relational nor act centered. Nor is foreseeability by its
nature more aptly associated with moral principles than with policy
considerations. Either way, the level of foreseeability selected as a
constituent of the duty analysis is designed, in part, to salve the
community’s resentment about the harm inflicted.

Foreseeability is relational precisely in the way that Esper and
Keating say. “Generally, [in most jurisdictions, an actor] owes a
duty of care to all persons who are foreseeably endangered by [the
actor’s] conduct with respect to all risks [that] make the conduct
unreasonably dangerous.” (153) Foreseeability also, however, plays
an additional substantive role, and helps courts determine what care is
due. A manufacturer, for example, ordinarily owes end users a duty to
test its products for dangers that may be deemed foreseeable to an
expert in that manufacturer’s field, and is presumed to possess all
of the available medical or scientific studies available to that expert
community. (154) And “some types of issues, such as those relating
to the obviousness of product-related [or other] risks, present a hybrid
tending to meld duty A (whether to warn the group to which the risk may
be obvious) and duty B (whether to provide a more specific warning)
concerns.” (155)

Nor is foreseeability, in either its relational or act centered
guise, a one-tiered concept. In standard negligence law, for example, a
tortfeasor will ordinarily be deemed to have had actual or constructive
notice of a defect or danger if similarly injurious incidents or
accidents previously occurred. (156) Products liability law, as just
suggested, has often relaxed this standard by presuming that the seller
knew what was discoverable at the time of sale, and thereafter. (157)

Considerations of fairness and efficiency motivate the layered
foreseeability standards. If life-threatening risks are scientifically
knowable at the time the sophisticated manufacturer sells its product,
the seller is capable of learning this and the presumption fairly
creates an incentive for it to invest in safety research. And because
the manufacturer has greater expertise than the consumer and is
generally better able to calculate the costs and benefits of safety
steps, and to exercise preventative care, the presumption’s
allocation of costs to the seller fosters efficiency. (158) As one
scholar says, “[t]he tort duty is predicated on information costs,
and so the substantive content of any duty to facilitate consumer
decisionmaking should also account for those costs.” (159)

D. Accounting for the Courts’ Self-Reflexiveness

To say, as Esper and Keating do, that the court’s legal duty
realm is one of law articulation, in contrast to the jury’s factual
law-application assignment, (160) is not necessarily to fire a
conceptual arrow into the heart of particularized duty rulings. Courts
know they articulate law, and believe this is their way of doing so. One
appellate court stated, “[t]he existence of a duty is a question of
law to be determined by the court…. Appellee had no duty to anticipate
that appellant would stuff multiple hot rolls in his mouth.” (161)
We may argue that this is application, not articulation, but as courts
have the jurisdiction to decide their own jurisdiction, (162) they have
authority to cleave “law” and “fact.” (163)

Nor does the law-articulation/law-application analysis follow an
easy demarcation. If, in their particularized duty determinations,
courts disguise “no breach as a matter of law” rulings as
“no duty” rulings, as Esper and Keating say, (164) it may also
be argued on the other side that duty holdings rooted in the general
obligation to avoid foreseeable harm cloak proximate cause decisions.
(165) Indeed, Jonathan Cardi writes, “[b]y conditioning duty on
whether one could foresee injury to the particular plaintiff
(‘plaintiff-foreseeability’) or whether the type or manner of
the injury was foreseeable, judges strip from juries their task of
deciding proximate cause.” (166)

Self-reflexiveness provides a more favorable, albeit analytically
challenging, route to tightening the duty concept. Consider by analogy
the traditional definition of a contract: “A contract is a promise
or a set of promises for the breach of which the law gives a remedy, or
the performance of which the law in some way recognizes as a duty.”
(167) We make promises. Courts define the set of promises that are
contracts, and contract law supplies regions-the overlap of
“competent parties, lawful subject matter, legal consideration,
mutual assent and mutual obligation”–in which to assign
correspondence sets. (168)

By a similar token, we swim in a sea of moral and non-moral,
general and particular, obligations. As Quine said, “[i]t is hard
to pick out a single distinguishing feature of moral values….”
(169) We owe an obligation when we should perceive that we do, and this
is the case when our breach gives rise to some level of collective
resentment because it violates a governing norm society may reasonably
be expected to infer. (170) So we try to meet those expectations as best
we can. When we fail to do so, the community ascribes fault.

Sometimes the court provides a remedy to those harmed by our
perceived wrongdoing. Somewhat similar to the contract definition, we
can say that duty in tort is an obligation or set of obligations to
adhere to a particular standard of care, which the law recognizes as
binding across the community, and for the injurious breach of which the
law allows a private remedy. (171) Obligations are multiform. Whether
the mechanism should be deemed to rest on corrective, distributive,
efficiency, or other core goals, the tort case survives at the threshold
when the court deems the injury claim cognizable and remediation
possible, and when it determines that the sort of obligation at issue
falls within the legitimate sphere of its regulatory role. (172) Policy
circumscribes the set of obligations that constitute duties and assigns
the legal gravity of any such obligation. As to most of our perceived
obligations–e.g., to place a book back on the shelf in proper order,
the breach of which may harm the next seeker–we cannot meaningfully ask
whether these constitute a legal duty. (173) Nor, as seen from the
discussion of the no-duty-to-rescue doctrine, is bodily integrity the
defining factor. (174)

That a tort duty is an obligation for the breach of which the law
allows a remedy also counts, in another way, in favor of the policy view
of duty. A moment’s carelessness, a small distraction, can result
in massive loss. (175) The moral lapse may be small, the violation of
one’s obligation momentary, but the actor was at fault and liable
to make her victim whole. (176) There will be less justification for,
and legitimacy to, a full-fledged compensatory remedy–as the law
requires–when the announced legal duty is deemed a direct expression of
moral obligation. (177) There are compelling policy reasons, however,
for allocating the loss, even to its full extent, to the person at
fault. (178) Courts do not partake of the higher order reflection that
characterizes some of Ronald Dworkin’s (179) or Joseph Raz’s
(180) work, but courts develop an embodied legal philosophy–thereby
structuring a self-reflective analysis of law’s parameters–by
virtue of their legal rulings, and principally in duty determinations.

Esper and Keating’s own writing betrays a confusion in their
law articulation/law application approach. They say, for instance, that
“jury adjudication is a reasonable procedure for settling
reasonable disagreement about what we owe to each other in the way of
careful conduct.” (181) Esper and Keating are here intuitively
referencing community norms, a setting in which jurors are speaking
about themselves and about their community’s belief structures. But
this rich view of duty differs from the flat, generalized approach Esper
and Keating otherwise take. (182) In contrast, by our terms, duty
consists in the court’s self-reflexive policy determination.
Settling on the obligations that we owe one another, if framed by the
community’s lights, could shift to the jury. The question is not
what we call it, but what statement is really being made, which norms
are at issue, and at what level the norms are being addressed.

The court’s duty language–‘”[t]he risk reasonably
to be perceived within the range of apprehension” (183)–does not
sound exactly like the community’s, but the foreseeability factor
does resemble the community’s norm. The concern is different,
however. When the community considers whether a risk was foreseeable to
the actor, it contemplates its members’ well-being and their
inclination toward resentment. (184) By contrast, the court’s duty
exercise undertakes a second order evaluation of the relevant
community’s relationship to the underlying conduct, and of how a
duty ruling may impact that community, a policy matter. (185) The
distinction is subtle, but somewhat akin to the competing notions of
“use and mention” in linguistic philosophy. (186) The court
speaks of law and, at critical times, “mentions” duty when it
determines whether, as a matter of policy, to provide a remedy for the
breach of a perceived obligation; the community and its jurors
“use” duty when they reflect upon their sense of wrongdoing
and level of resentment. The community asks what is the obligation we
owe or should owe one another. The court asks how it should rule on the
duty issue, and what will be the impact of its ruling on the community
and society.

How, finally, might the self-reflexive view of duty impact the
issue of particularized duty rulings? Although we agree that highly
fact-specific duty rulings will tend, by a wide margin, to privilege the
defendant’s liberty interest over the injured plaintiffs security
interest, this is not always, or necessarily, the case. A standard by
which ‘”[t]he risk reasonably to be perceived within the range
of apprehension delineates the duty to be performed and the scope
thereof”‘ (187) invites a good deal of specificity, yet the
outcome often favors the existence of a legal duty. (188) And, because
the case later goes to the jury, this assessment does not predetermine
the breach deliberation.

It therefore seems inadvisable to reactively deem particularized
no-duty rulings to be “no breach as a matter of law” rulings
in disguise, as Esper and Keating say. (189) Even particularized
determinations may be appropriate if the court’s language is
reasonably analyzed as a refinement of its institutional standing or of
its regulatory role vis-a-vis the sort of activity at issue. Short of
this, the court usurps the jury’s function, as Esper and Keating
argue, when it picks and chooses among competing community norms. (190)

Two cases help make the point. Esper and Keating’s prime
target is Monreal v. Tobin. (191) As Esper and Keating see it, the
California court abused duty in this case by ruling not that the
defendant driver owed a general duty of care to those who might
reasonably be endangered by his driving, but rather that the
‘”driver of a vehicle traveling at the posted maximum speed
limit … owes ‘no duty’ [to switch over] … into the next
slower lane when another driver approaches from behind in the same lane
at a speed in excess of the posted maximum speed limit.”‘
(192) As Esper and Keating say, the court’s no-duty statement was
highly particularized. (193)

Monreal, however, raised the second-order issue of how the court
should treat conflicting legal norms. (194) The Monreal court undertook
the legitimate task of examining “the scope of the general common
law duty to use ordinary care.” (195) Scope of duty issues
typically lead courts to discuss standards for determining duty issues,
that is, to speak of how courts decide things. (196)

But more specifically, Monreal arises from a conflict between duty
A (duty to whom) and duty B (duty to do what) rules. Esper and Keating
focus on the duty A consideration, namely, the driver’s general
duty of care to others on the road. (197) As discussed, however, (198)
duty is a bifurcated element of negligence, and the court had to attend
to the duty B factor, as well, namely, the driver’s duty to obey
the posted speed limit. (199) Balancing competing duty rules is a legal
matter for the court, and is likely to require a particularized
analysis.

Esper and Keating explain about Monreal that the “intuition at
work” is that the driver’s conduct in not changing lanes was,
all things considered, reasonable, and that “[h]e is not free of
the obligation to be careful; he is free of fault.” (200) Esper and
Keating continue:

   There is a world of difference between saying that someone
   is not subject to any obligation of due care at all and saying
   that it is plainly evident that someone has discharged his
   obligation of due care--so evident that no reasonable person
   could think him even a little bit careless. (201)

The problem in Monreal, however, was just the opposite. Although
the posted maximum speed limit was fifty-five miles per hour, traffic
generally traveled at speeds in excess of sixty-five miles per hour.
(202) This means, not surprisingly, that driving at speeds higher than
the fifty-five-mile-per-hour posted limit was the community’s
normal practice. The injured party filed the lawsuit because it seemed
non-frivolous to allege that the driver was at fault for lingering in
the higher-speed lane, and because he had been in a position to foresee
an injurious outcome. (203) The point of view motivating a fault
analysis is that of the community, and here its members were the ones
driving “normally” at sixty-five miles per hour. (204)
Atypically, the community’s perceived security interest aligned
with its liberty interest, yet conflicted with the norm requiring
obedience to the law; this was a circumstance ideally suited for the
court’s development of its embodied legal philosophy.

Another case that Esper and Keating deem representative of the
courts’ abuse of duty is McGettigan v. Bay Area Rapid Transit
District. (205) They point to “[t]he intensely particular
ruling[]” in McGettigan that a mass transit agency owes no duty
“to an inebriated passenger whom it has escorted off the train once
he is on the platform.” (206) Esper and Keating say:

   We think that the duty owed in this situation does not
   depend on such things as whether the victim was done
   exiting a train or had not yet begun to board one, but
   extends to all reasonably foreseeable victims of the careless
   conduct on the railroad's part, simply because harm to them
   is reasonably foreseeable. (207)

For Esper and Keating, the jury should have decided whether the
carrier violated its duty of due care when its agents failed to continue
safeguarding the inebriated passenger once he had reached the platform.
(208) One needs, however, to decide first what sort of duty is at issue.
(209) Had the case gone to trial, the jury would have been justified in
sending a note to the court seeking a definition or guidance on the
extent of the carrier’s legal obligation to have followed through
with its supervision of the plaintiffs progress. (210) McGettigan
answers, as a matter of policy, that the carrier’s heightened
degree of care is owed only while “passengers are in transitu, and
until they have safely departed the carrier’s vehicle.” (211)
One may disagree substantively, but the sort of duty analysis McGettigan
undertakes does not appear to usurp the jury’s function.

V. A CRITIQUE OF CARDI AND GREEN’S NON-RELATIONAL VIEW OF DUTY

A. Cardi and Green’s Alignment with the Restatement (Third) of
Torts

The third and final (for our purposes) major view of duty is that
of W. Jonathan Cardi and Michael D. Green, as expressed in their
definitive 2008 piece Duty Wars. (212) Cardi and Green defend the
non-relational default approach adopted by the Restatement (Third) of
Torts, wherein a duty is presumed, under section 7(a), if “the
actor’s conduct create[d] a risk of physical harm.” (213)
Notably absent is any reference to foreseeability. (214) The Third
Restatement, at section 7(b), permits the court to issue no-duty rulings
on instrumentalist grounds, in “exceptional cases,” if there
is an “articulated countervailing principle or policy [that]
warrants denying or limiting liability.” (215)

Cardi and Green criticize the trend they perceive among “many
courts” to depart from default duty rules and to engage instead in
“a loose multifactorial analysis that features
foreseeability.” (216) Tort law has not and should not be this way
and, indeed, the restatements have fairly uniformly rested on the
default principle. (217) So too have the reporters always acknowledged a
universal duty not to invade another’s bodily integrity. (218)
Moreover, the two major contemporary tort treatises harmonize with the
Third Restatement’s view that a default duty of reasonable care
exists. (219) The existence of a general, default duty of care was
traditionally taken for granted, say Cardi and Green, and courts began
to foster litigation of the duty issue during the industrial revolution
primarily to limit negligence liability and promote industrial growth.
(220)

Cardi and Green call Goldberg and Zipursky’s
obligation-centric view of duty under-inclusive, and note that many case
decisions take an explicitly instrumentalist approach. (221) So Cardi
and Green, like Esper and Keating in this respect, have the more
balanced understanding, saying that duty is about both obligation and
instrumentalist concerns such as deterrence and the spreading of loss.
(222) As the Court said in Riegel v. Medtronic, Inc., (223) a tort award
is designed to be “a potent method of governing conduct and
controlling policy.” (224)

According to Cardi and Green, section 7 divides the meta-tasks of
treating duty from an obligation versus policy point of view. (225) They
regard section 7(a) of the Third Restatement as embodying “a
community-based moral sense of obligation,” (226) and wonder why
Goldberg and Zipursky may not be satisfied that this represents
“exactly the type of obligation-based rule that [they] claim is
central to tort law.” (227) Cardi and Green allow that section
7(a)’s default rule–that “[a]n actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct creates a risk of
physical harm” (228)–also likely expresses instrumental concerns
such as the need to deter “unreasonably risky” activity. (229)
For the most part, however, they reserve to section 7(b) the task of
describing law’s instrumental, policy approach, which is
implemented in the form of no-duty determinations. (230)

Although we will address the substance of section 7’s default
principle shortly, it may be useful to say something here about what
Cardi and Green’s thesis implies about the community’s moral
sense. Were section 7(a) an embodiment of the community’s morality,
this would mean that the community’s dominant moral sensibility is
behaviorist. (231) There is little warrant for this view, however.
Consider the well-intended falsehood. Visiting from Oymyakon, Russia,
and not familiar with hot weather road conditions, A alerts B to water
on the pavement and, anxious about her bald tires, B swerves and
crashes. But A is wrong, and this mirage is a natural result of the
refractive indices of the layers of air. (232) A has not lied, and the
community is not likely to condemn him. Nevertheless, A’s conduct
created a risk of physical harm. So by the logic of Cardi and
Green’s thesis, the community will condemn A as having acted
immorally, based solely on stimulus-response types of evidence
intuitively irrelevant to the moral assessment. (233)

Another consequence of Cardi and Green’s duty concept purged
of its foreseeability sub-element, (234) and following the contours of
the Third Restatement definition, is the absence of a relational
component–what we have labeled duty A (duty to whom). (235) It is Cardi
and Green’s view that, “although negligence liability is
necessarily relational, the element of duty is not.” (236)
Descriptively, they maintain that courts’ frequent reference to
relational duty may only “sometimes be taken at face value,”
because on the whole courts are “simply” using the duty A
concept “as a tool to effect policy driven limitations on
liability.” (237)

This effort at developing a coherent line, however, is somewhat out
of sync with section 7(b), which Cardi and Green seek to legitimize.
That subsection states that “[i]n exceptional cases, when an
articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court may decide
that the defendant has no duty or that the ordinary duty of reasonable
care requires modification.” (238) It is strained to assume that
courts’ policy-driven duty analyses verge on subterfuge. Cardi and
Green elsewhere acknowledge that section 7(b)’s policy statement
expressly concerns the duty analysis; (239) courts thereby reflect upon
the parameters of the judiciary’s institutional competence and
reach.

Products liability and toxic tort contexts often highlight the
relational, duty A issue, sometimes raising, for example, privity and
chain of product distribution concerns. (240) Relaxation of the privity
requirement in products cases enforces the accountability not only of
retailers, but also of manufacturers, wholesalers, and distributors:
those engaged, in short, “in the business of selling
products.” (241) The “occasional seller” is thereby
excluded. (242) It is not logical to conclude that merely one’s
status as an “occasional” seller immunizes one from
accountability for product-related injuries on proximate cause grounds.
Certainly, the nexus of the direct (even if “occasional”)
seller to the end product user is more causally proximate than that of
the manufacturer or distributer. One’s day-to-day status unrelated
to the transaction at issue, either by way of conduct or proximity, is
not causally relevant to the effects of that transaction. Rather, courts
decline to impose a relational duty on such sellers. (243)

Normatively, Cardi and Green deem the relational view of duty
“inferior” for the following three reasons: (1) relational
duty fails to accurately describe the way we think of duty in our
day-to-day obligations; (2) a relational approach conflates the duty and
liability elements of a negligence claim; and (3) relationality
“erodes the rule of law” and distorts the separate
decision-making roles of judge and jury. (244) Cardi and Green
“think that obligations to act reasonably are most accurately
described as act centered and non-relational.” (245) Because
foreseeability is the primary constituent of the relational approach to
duty, (1), (2), and (3) may be reframed as equivalent critiques of
foreseeability. (246)

B. Rehabilitating Foreseeability–Why the Third Restatement’s
Vision of Duty is Incoherent

Cardi and Green’s view that foreseeability should be excluded
from the duty analysis flows from Cardi’s prior 2005 work, Purging
Foreseeability. (247) Cardi there argues that foreseeability’s
“prominence” in duty determinations is problematic because
this “has a pernicious effect on the rule of law,” providing a
vehicle for “unbounded judicial discretion,” and because the
court’s license to weigh in on foreseeability usurps the
jury’s traditional role. (248)

The cure, for Cardi, resides in section 7(a), which reads,
“[a]n actor ordinarily has a duty to exercise reasonable care when
the actor’s conduct creates a risk of physical harm.” (249)
Cardi approves of that section’s rationale, at comment j, which
says:

   Despite widespread use of foreseeability in no-duty
   determinations, this Restatement disapproves that practice
   and limits no-duty rulings to articulated policy or principle
   in order to facilitate more transparent explanations of the
   reasons for a no-duty ruling and to protect the traditional
   function of the jury as factfinder. (250)

This article agrees with comment j, and with Cardi and Green, that
safeguarding the jury’s expansive factfinding role is beneficial.
Cardi and Green apparently believe further that eliding foreseeability
will indeed result in allowing more cases to pass to the jury. (251)
This is unlikely. Absence of the foreseeability factor may, as Cardi and
Green say, “make more palatable the policy decisions that
foreseeability so ably obscures,” (252) but it will not negate the
policy rationales underlying no-duty decisions. If clearer articulation
of true motivating reasons is the goal, then this is an issue that may
be addressed separately from the foreseeability question; courts can
simply resolve to say what they mean.

But the commentators’ quantitative suggestion is inaccurate.
Inclusion of a foreseeability factor is far more likely to count in
favor of the submission of a case to the jury. (253) As Cardi and Green
concede, “most conduct in fact creates some foreseeable risk.”
(254) Purging foreseeability removes it as a reason for the case to pass
the duty test. (255) Nor can we suppose that a policy-laden no-duty
analysis will be the more lucid for lack of a foreseeability
consideration. Jurists engaging in “unbounded judicial
discretion” by treating foreseeability as no more meaningful than
“strawberry shortcake,” (256) are not necessarily bound to
become bounded on the basis of altered terminological tools.

Moreover, as far as decision-making transparency goes, (257) it is
probable that things work just the opposite way from that envisioned by
Cardi and Green. In other words, where there may be a yes-duty
determination that does not articulate a foreseeability ground, or that
rejects foreseeability on principle as analytically alloyed, it is quite
possible that foreseeability undergirds the intuitive insight, spurring
the outcome. It is likely, in any event, that a yes-duty ruling comes
equipped with both a duty A (duty to whom) and a duty B (duty to do
what) rationale, even if foreseeability is not visible in the analysis.
(258)

One case to which Cardi and Green cite for its adoption of the
Third Restatement’s rejection of foreseeability is the Arizona
Supreme Court decision in Gipson v. Kasey. (259) There, the defendant
attended a holiday party knowing whiskey and beer would be served, yet
handed out several doses of a narcotic prescription drug to his friend
Sandy. (260) The Gipson court made sure to note that the defendant knew
that Sandy’s boyfriend Nathan was interested in taking narcotic
drugs for recreational purposes. (261) Nathan combined the drugs with
alcohol and died. (262)

In the appeal, the defendant argued that foreseeability of harm
should not be a factor in duty analysis, and that the intermediate
appellate court had therefore erred in ruling that defendant had a duty
because, in part, harm to Nathan was foreseeable. (263) The court cited
the Third Restatement as well as Cardi’s Purging Foreseeability for
the view that foreseeability is not a factor to be considered in the
duty analysis. (264) Inconsistent with section 7, however, the Gipson
court both asked whether public policy warranted “imposing a
duty” under the circumstances of the case, and recited its own duty
principle as holding that “every person is under a duty to avoid
creating situations which pose an unreasonable risk of harm to
others.” (265)

If a general duty of care to all is the default rule, as section
7(a) says, then the only policy issue is whether to negate that duty, as
section 7(b) allows. (266) If a determination of “unreasonable
risk” is requisite to a yes-duty holding, however, then it is
difficult to see why some level of scienter may not be implicated.
Risk/utility balancing typically informs the issue of unreasonable risk.
The Restatement (Third) of Torts: Products Liability, for instance,
describes this test in the design defect context as whether a feasible
“alternative design would, at reasonable cost, have reduced the
foreseeable risks of harm posed by the product,” (267) and teaches
that “the balancing of risks and benefits in judging product design
and marketing must be done in light of the knowledge of risks and
risk-avoidance techniques reasonably attainable at the time of
distribution.” (268)

Therefore, the Gipson analysis was murky. It did not appear that
the court recited the true ground underlying its ruling, namely, that
this defendant should have known that dispensing narcotics to folks
prone to misusing them in combination with alcohol could be harmful, and
therefore had a duty to refrain from this conduct. (269) By purging
foreseeability, in other words, the decision suffered from some of the
very difficulties that Cardi and Green blame on the inclusion of
foreseeability as a factor in the duty determination. (270) At the very
least, Gipson is not a case in which there was a lack of foreseeability
counseling a no-duty determination but for the section 7 principles.
(271)

Cardi and Green’s approach, patterning that of the Third
Restatement, is superficially appealing. Some courts have come to
believe that it promises to clean up the duty analysis. (272) But the
approach is incoherent. Going one step further, the concept of duty
itself is incoherent–even if not meaningless or a “nullity”
(273)–if stripped of a foreseeability component.

Again, section 7(a) says: “An actor ordinarily has a duty to
exercise reasonable care when that actor’s conduct creates a risk
of physical harm.” (274) But what constitutes “reasonable
care?” Under this section, the actor has a duty to exercise care
that is reasonable, and inversely does not have a duty to exercise care
that is not reasonable. Therefore, even if the actor’s conduct
creates a risk of physical harm, he or she has no duty to take
precautions that would not be deemed reasonable, under the
circumstances. Reasonable care is ‘”[care that a] reasonable
person would exercise,” (275) or so the jurists say, and the
definition seems reasonable.

If reasonable care is the level of care a reasonable person would
exercise, then the question becomes whether a reasonable person would
exercise care to avoid unforeseeable risks. This displays the
incoherence, because a reasonable person would have no reason to avoid
unforeseeable dangers. This snag would be more apparent were section
7(a) to read: “An actor ordinarily has a duty to exercise
reasonable care … ‘to avoid creating … an unreasonable risk of
harm,”‘ as suggested in Gipson. (276) Under either the actual
or Gipson-modified version of section 7(a), however, reasonableness of
conduct is a constituent of legal duty. Joseph Raz has helpfully
explained that “[t]he logical equivalence between ‘ought’
statements and their corresponding ‘there is a reason’
statements is sufficiently close that if a person believes in either he
necessarily believes in the other.” (277)

Cardi and Green acknowledge the “awkwardness of duty talk …
that omits foreseeability.” (278) They discount this awkwardness as
a “by product” of the difference between law and morality.
(279) One may have no moral obligation to take precautions without
having a reason to know that one’s conduct may pose a danger of
harm to others. But, apparently, one may nevertheless then have a legal
duty to take such precautions. (280) Raz emphasizes more cogently,
however, that laws are deemed norms, and “[t]his entails that they
are reasons for action.” (281) And Cardi and Green may slip when
they write that, “after all, it does not seem appreciably more
awkward to say that one owes a duty to take reasonable precautions not
to create risks of harm to others, and if no risk was foreseeable, then
no precautions were required.” (282)

Section 7(a) is less lucid than the traditional approach, which
imposes an ongoing duty to exercise due care toward those who might
foreseeably be harmed by one’s conduct, in another respect. (283)
The Restatement version imposes “a duty to exercise reasonable care
when [that] actor’s conduct creates a risk of physical harm.”
(284) This articulation supplies a rather opaque nexus between the risk
created and the care due. The foreseeability element places the actor on
the lookout for unreasonable risks, whereas the section 7(a) view is
more akin, in this temporal respect, to the sort of duty that arises in
particularized contexts, such as warnings (285) or Good Samaritan (286)
cases. But fixing duty’s inception to the moment the risk arises
works in these contexts, and is coherent, only by virtue of the very
foreseeability factor that is absent from section 7(a).

Cardi and Green’s and the Third Restatement’s effort at
assigning foreseeability issues exclusively to the trier of fact is not
unmotivated. To be sure, in the world of legal practice, the question is
posed to the jury whether a defendant exercised reasonable care under
the circumstances, the breach issue. (287) At the same time, however,
when the case is explained to the jury, the court typically suggests
that, as a conceptual matter, duty–the breach of which the jury is to
decide–has been conditioned upon foreseeability. (288) This avoids the
conceptual incoherence inhering in the Third Restatement’s and
Cardi and Green’s notion of duty.

As indicated above, (289) Cardi anticipates the objection that the
‘”creates a risk’ standard renders duty a nullity,”
(290) but responds that this objection misses the mark, because section
7(a) reflects “a strong form of a duty” that courts have
already developed on the basis of public policy and community norms.
(291) Accordingly, the work of imbuing the duty concept with content
“has already been done.” (292) The problem, however, is not
that duty itself is rendered a nullity under section 7(a), but rather
that its constituent “reasonable care” component is rendered
incomprehensible.

Reasonable care is equivalent to reasonable conduct. For duty to
render reasonable care to be coherent, the constituent idea of
reasonable care must be meaningful and capable of rational assessment.
The question becomes not whether the jury can decide breach of duty, but
rather whether the actor herself–or in a larger sense, the
community–has a basis for ascertaining a difference between reasonable
care and unreasonable conduct. If the concept of duty is stripped of its
mental element, and if it thereby encompasses risks that the actor does
not and could not be aware of, under any definition of constructive
knowledge, then what constitutes reasonable care?

Professor Cardi argues that the conceptual work done by
foreseeability in statements of duty better fits wholly within the
elements of breach and proximate cause. (293) With respect to breach,
Cardi explains:

   Once the judge has determined that the defendant owed a duty and
   has delimited that duty in a standard of care, the jury must then
   decide, in the context of breach, whether the defendant's conduct
   failed to conform to that standard. The near-universal standard of
   care in negligence cases is the duty to act as would have a
   reasonable person under the circumstances. Reasonableness often
   turns on (1) the degree of foreseeable likelihood that the
   defendant's actions might result in injury, (2) the range in
   severity of foreseeable injuries, and (3) the benefits and burdens
   of available precautions or alternative manners of conduct.
   Together, the range of likelihood and severity of foreseeable
   injury constitutes the foreseeable "risk" created by an actor's
   conduct. (294)

A breach of duty is a failure to perform the duty. (295)
Conceptually, if duty is defined to exclude the foreseeability
component, then the minimal condition for a breach of duty must also
exclude foreseeability. If foreseeability does not inhere in the idea of
reasonable care, then it is not necessarily implicated in deciding the
failure to exercise reasonable care. Drivers having a duty to drive on
the right side of the road are in breach of that duty when they drive on
the left side. (296) But if foreseeability does inhere in the idea of
reasonable care, then it also is a component within duty.

Cardi continues that the proximate cause element affords the jury
or court a tool for limiting liability for blameworthy conduct to risks
sufficiently connected to that conduct. (297) But concepts of causation
vary, (298) and causation in and of itself does not logically guarantee
a foreseeability sub-element. The causation element itself is
tripartite, consisting of causation A (the legal, “proximate”
connection between the breach of duty and the harm); causation B (the
general capability of the mechanism to cause the harm); and causation C
(the link in the particular case between the mechanism and the harm).
(299) Foreseeability is alien to the core idea, which is simply that
there are two (or more) distinct events bearing some sort of
cause-effect relation to one another. (300) Regarding causation A, there
was a time when some courts took the position that, “where in the
natural and continual sequence, unbroken by any intervening cause, an
injury is produced which, but for the negligent act would not have
occurred, the wrongdoer will be liable. And it makes no difference
whether or not that particular result was foreseeable.” (301)

Consider the following hypothetical: Fozzie walks Gonzo home on a
steeply sloped San Francisco street. Fozzie acts silly, spins, and
negligently pushes Gonzo sideways by two feet. Gonzo is unharmed by the
push, but at that moment the brake mechanism on a parked car gives out
and the car slides into Gonzo. But for Fozzie’s push, Gonzo would
have been unharmed by the car. Under section 7(a), Fozzie owed a duty of
reasonable care to Gonzo. Fozzie’s conduct violated that duty,
because it negligently created a risk of physical harm. The case would
probably be dismissed, or a verdict directed in favor of Fozzie, on
proximate causation grounds, but this is not necessarily so. (302) It is
difficult to appreciate the inferiority of the alternative analysis,
that Fozzie owed a duty to exercise reasonable care toward those who
might foreseeably be harmed by his conduct (duty A), (303) and in
relation to foreseeable dangers (duty B), and it was this duty of which
he was not in breach.

C. Why Foreseeability in Duty Does Not Encroach Upon the
Jury’s Role

Professor Cardi has acknowledged that the foreseeability inquiry
may be different in different contexts. (304) By the same token, nothing
prevents the foreseeability determination in legal duty contexts from
being different from the factual foreseeability inquiries in breach and
proximate causation contexts.

When the jury deliberates upon the evidence and applies the law to
the facts, it asks whether the defendant was in a position to foresee
harm–either some harm or the particular harm (305)–or whether, given
the circumstances, it should have foreseen–such that a reasonable actor
would have foreseen–the harm. (306)

When the court includes a foreseeability component within the duty
analysis, it has a different concern. It then makes a general policy
determination whether to enforce–and thereby whether courts should
enforce–an obligation to foresee the sort of risk involved. (307) As
one court put it:

   In determining the existence of a duty, we look at the relationship
   of the parties, the nature of the plaintiffs interest and the
   defendant's conduct, and the public policy in imposing a duty on
   the defendant. We look at both foreseeability and whether the
   obligation of the defendant is one to which the law will give
   recognition and effect. The assessment of foreseeability takes into
   account "community moral norms and policy views, tempered and
   enriched by experience, and subject to the requirements of
   maintaining a reliable, predictable, and consistent body of law."
   (308)

Although the level of self-awareness evident in the court’s
statement may be unusually high, the statement seems perspicuous. This
view of duty and its constituent foreseeability sub-element accurately
describe the approach, however implicit, in most jurisdictions. And this
article has argued that, normatively, this is the lens through which
courts should approach the duty determination.

Cardi and Green agree with Goldberg and Zipursky that liability for
negligence, “as opposed to duty, in particular,” is
relational, and that ‘”negligence in the air’ will not
suffice.” (309) Accordingly, say Cardi and Green, “the chef
who negligently prepares a meal that causes a [diner] to become [sick]
will not be held liable for the death of the [diner’s] elderly
mother who, as a result of the [diner’]s illness, [was] not given
her [medication].” (310) This hypothetical is framed entirely in
causal language, and the chefs negligence was a substantial contributing
factor in having caused the death. Cardi and Green are correct that,
probably, if it came down to this, the jury or court would find
proximate, legal cause lacking. Given the causal connection, however,
resolving the case by finding a duty and a breach, albeit lack of
proximate causation, seems messy. The cleaner, more intuitively stable
outcome, would be that the chef simply owed no duty to the unseen
live-in mother. The law will not impose upon the chef a duty to foresee
what the diner’s private living arrangement might be.

Any such duty determination on the part of the court would not
encroach upon the jury’s role in deciding foreseeability. While the
jury’s assessment will reflect its community’s norms, the
jury, unlike the court, will not be charged with taking into account
“policy views, tempered and enriched by experience, and subject
[self-reflexively] to the requirements of maintaining a reliable,
predictable, and consistent body of law.” (311)

VI. CONCLUSION

Everyone agrees that law’s legitimacy wanes when legal
outcomes seem to result from whim or undisciplined discretion. Any duty
theory should minimize the appearance of arbitrary decisionmaking about
whether D owes P a duty, and concomitantly maximize the probability that
the case’s outcome may apply generally and universally, stabilizing
law’s legitimacy. (312)

Those who have led the charge in the duty wars are understandably
concerned that no-duty determinations often appear inappropriately
case-specific and fact-bound, and hence illustrative of the sort of
decision-making legal realism has described. (313) Nevertheless, neither
conceptualizing duty as moral obligation, as Goldberg and Zipursky and
Esper and Keating propose, nor ridding the concept of its foreseeability
sub-element, pace Cardi and Green and the Restatement (Third) of Torts,
is the key to a more stable, coherent and legitimate tort mechanism.
This article has shown that such moves may have the opposite effect.

The legal scholars have failed to appreciate the extent to which
the court’s instrumental duty analysis, inclusive of a
foreseeability component, furthers the role judges play in
self-reflexively developing, and at times articulating, an embodied
philosophy of tort law’s reach and limitations in structuring the
efficiencies of private and commercial activity. Duty to foresee is
often the most salient policy issue constituent within the larger duty
determination. (314) Although Cardi and Green assess foreseeability as a
standardless murk that should be purged from the duty analysis (but not
from the jury’s deliberations), it can, quite the contrary, be
pellucid as a sub-element in a tort claim. Foreseeability in duty is a
resilient hybrid factor tending to meld duty A (whether the protected
group should be deemed closely enough situated to warrant
defendant’s consideration) and duty B (whether the defendant should
be vigilant or investigate) concerns.

Duty commentators appear to agree that preserving the availability
of legal remedies for those aggrieved by actors at fault is the salutary
goal. Inclusion of foreseeability within duty does not predetermine the
jury’s assessment, but clarifies duty’s parameters and helps
send to the jury those cases in which enforcing an obligation to foresee
is deemed normatively desirable. The unfortunate alternative is to
arbitrarily purge this important policy consideration from the larger
instrumental determination of duty.

(1) See ALAN CALNAN, DUTY AND INTEGRITY IN TORT LAW 2, 126-27 n.9
(2009) (“By the early twentieth century, the entire venture had
ground to a halt. To this day, … no post-Holmesian scholar has
presented a metatheory of duty that transcends all of tort’s
theoretical boundaries.”).

(2) W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. CAL.
L. REV. 671, 672 (2008) [hereinafter Cardi & Green, Duty Wars];
Dilan A. Esper & Gregory C. Keating, Abusing “Duty”, 79 S.
CAL. L. REV. 265, 269-70 (2006) [hereinafter Esper & Keating,
Abusing “Duty’]; John C.P. Goldberg & Benjamin C.
Zipursky, The Restatement (Third) and the Place of Duty in Negligence
Law, 54 VAND. L. REV. 657, 661-62 (2001) [hereinafter Goldberg &
Zipursky, Place of Duty].

(3) See Mere. of the Coal. for Litig. Justice, Inc., in Support of
Defs.’ Mot. to Establish an Unimpaired Docket, In re Asbestos
Litigation, m 2004-03964 (11th Jud. Dist., Harris County Tex., May 3,
2004)(on file with author); Behrendt v. Gulf Underwriters Ins. Co., 768
N.W. 2d 568, 581 n.5 (Wis. 2009) (Abrahamson, C.J., concurring) (noting
that “[t]he concept of duty … is in ‘turmoil,”‘
discussing, inter alia, Esper & Keating, Abusing “Duty”,
supra note 2, at 268, and Cardi & Goldberg, Duty Wars, supra note 2,
at 671); Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007) (grappling with
the duty standard, relying in part on W. Jonathan Cardi, Purging
Foreseeability: The New Vision of Duty and Judicial Power in the
Proposed Restatement (Third) of Torts, 58 VAND. L. REV. 739, 801(2005))
[hereinafter Cardi, Purging Foreseeability]; Hamilton v. Accu-Tek, 62 F.
Supp. 2d 802, 821 (E.D.N.Y. 1999) (relying in part on John C.P. Goldberg
& Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV.
1733, 1823 (1998) [hereinafter Goldberg & Zipursky, Moral of
MacPherson], in determining the existence of duty).

(4) See Goldberg & Zipursky, Place of Duty, supra note 2, at
662-63.

(5) Dilan A. Esper & Gregory C. Keating, Putting
“Duty” in its Place: A Reply to Professors Goldberg and
Zipursky, 41 LOY. L.A.L. REV. 1225, 1241, 1251 (2008) [hereinafter Esper
& Keating, Putting “Duty” in its Place].

(6) Cardi & Green, Duty Wars, supra note 2, at 682. Professor
Calnan labels Goldberg and Zipursky. and likely also Esper and Keating,
as “conceptual pragmatist[s]” on the duty issue in varying
degrees, and explains why Cardi and Green and the Third Restatement of
Torts represent the “instrumental pragmatist” perspective.
CALNAN, supra note 1, at 2, 53, 129-30.

(7) Because this article seeks to further the dialogue bridging
theoretical ideas about duty and judicial interpretations, it shall not,
except in passing, be concerned with another highly theorized point of
view, that of deontologists such as Ernest Weinrib who, as Professor
Calnan nicely puts it, “argue that duty is an immutable moral
obligation grounded in Kantian and Hegelian notions of abstract
right.” CALNAN, supra note 1, at 2 (footnote omitted); see Ernest
J. Weinrib, Correlativity, Personality, and the Emerging Consensus on
Corrective Justice, 2 THEORETICAL INQUIRIES L. 107, 119-26 (2001).
However, as the reader will recognize, this article’s critique of
Goldberg and Zipursky applies, in important respects, to the
deontological approach.

(8) See infra Part II.

(9) CALNAN, supra note 1, at 116.

(10) See R. H. Coase, The Problem of Social Cost, 3 J.L. &
ECON. 1, 9-11, 13, 15 (1960).

(11) See infra Part III.

(12) See infra Part III.B.

(13) See infra Part IV.A.

(14) See infra Part IV.A.

(15) See infra Part IV.B.

(16) See Cardi & Green, Duty Wars, supra note 2, at 673,
726-32; see also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. &
EMOT. HARM [section] 7 (2010).

(17) See Cardi & Green, Duty Wars, supra note 2, at 722-26; see
also Holdampf v. A.C. & S., Inc. (In re N.Y.C. Asbestos Litig.), 840
N.E.2d 115, 122 (N.Y. 2005) (“New Jersey, unlike New York, relies
heavily on foreseeability in its duty analysis.”).

(18) Cardi & Green, Duty Wars, supra note 2, at 713-14.

(19) See infra Part V.

(20) See Kirksey v. Tonghai Mar., 535 F.3d 388, 391 (5th Cir.
2008); Novak v. Seiko Corp., No. 01-35002, 2002 U.S. App. LEXIS 9594, at
“17 (9th Cir. May 16, 2002) ([D]uty is a legal issue to be decided
by the court.”).

(21) Leon Green, The Duty Problem in Negligence Cases, 28 COLUM. L.
REV. 1014, 1025 (1928).

(22) See Rishel v. A.P. Constr., Inc., No. L-296-06, 2011 WL 13691,
at *2 (N.J. Super. Ct. App. Div. Jan. 5, 2011). The Rishel court stated:

   A major consideration in the determination of the existence of a
   duty of reasonable care under 'general negligence principles' is
   the foreseeability of the risk of injury ... In addition, the
   determination of such a duty 'involves identifying, weighing, and
   balancing several factors--the relationship of the parties, the
   nature of the attendant risk, the opportunity and ability to
   exercise care, and the public interest in the proposed solution.'
   ... The analysis leading to the imposition of a duty of reasonable
   care is 'both factspecific and principled,' and must satisfy 'an
   abiding sense of basic fairness under all of the circumstances in
   light of considerations of public policy.'

Id. (citations omitted).

(23) 1 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. &
EMOT. HARM [section] 7, cmt. j (2010) (“Despite widespread use of
foreseeability in no-duty determinations, this Restatement disapproves
that practice….”).

(24) Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

(25) John D. Trimmer, The Present Situation in Quantum Mechanics: A
Translation of Schrodinger’s “Cat Paradox” Paper in 124
PROC. OF THE AM. PHIL. SOC’Y 323, 328 (1980) (“If one has left
this entire system to itself for an hour, one would say that the cat
still lives if meanwhile no atom has decayed* The w-function of the
entire system would express this by having in it the living and dead cat
(pardon the expression) mixed or smeared out in equal parts.”)
(translating Erwin Schrodinger, Die gegenwartige Situation in der
Quantenmechanik, 23 NATURWISSENSCHAFTEN 807 (1935)).

(26) Palsgraf, 162 N.E. at 99-100 (“Nothing in the situation
gave notice that the falling package had in it the potency of peril to
persons thus removed…. If no hazard was apparent to the eye of
ordinary vigilance, an act innocent and harmless, at least to outward
seeming, with reference to her, did not take to itself the quality of a
tort…. The risk reasonably to be perceived defines the duty to be
obeyed.”); see also Bailey v. Huggins Diagnostic & Rehab. Ctr.,
Inc., 952 P.2d 768, 772-73 (Colo. App. 1997).

(27) Palsgraf, 162 N.E. at 102 (Andrews, J., dissenting) (citing
Hover v. Barkhoof, 44 N.Y. 113 (1870); Mertz v. Conn. Co., 112 N.E. 166
(N.Y. 1916)).

(28) Id. at 103-04. Judge Andrews adopted the then-budding legal
realist position on causation, explaining that the “proximate”
causation determination is “arbitrarily” a function of
convenience and public policy. Id. at 103. “This is not logic. It
is practical politics.” Id. Affirming the lower appellate ruling in
Ms. Palsgraf’s favor, however, necessarily also meant upholding the
duty element absent foreseeability.

(29) See, e.g., Holdampf v. A.C. & S., Inc. (In re N.Y.C.
Asbestos Litig.), 840 N.E.2d 115, 119 (N.Y. 2005)
(“[F]oreseeability bears on the scope of a duty, not whether a duty
exists in the first place”).

(30) See generally Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007)
(Foreseeability … is more properly applied to the factual
determinations of breach and causation than to the legal determination
of duty …. We believe that such an approach desirably recognizes the
jury’s role as fact finder and requires courts to articulate
clearly the reasons, other than foreseeability, that might support duty
or no-duty determinations.”) (citations omitted); Gates v.
Richardson, 719 P.2d 193, 196 (Wyo. 1986) (expressing the view that the
fact-intensive “reasonable foreseeability” inquiry “is so
vague that it has little practical value”); see also 1 RESTATEMENT
(THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT. HARM [section] 7, cmt.
j (2010).

(31) See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)
(“Properly defined, duty is the legal obligation owed by defendant
to plaintiff to conform to a reasonable person standard of care for the
protection against unreasonable risks of harm. A risk is unreasonable
and gives rise to a duty to act with due care if the foreseeable
probability and gravity of harm posed by defendant’s conduct
outweigh the burden upon defendant to engage in alternative conduct that
would have prevented the harm.”) (citations omitted).

(32) Keebler v. Winfield Carraway Hosp., 531 So. 2d 841, 844 (Ala.
1988) C[T]he existence of such a duty depends on whether Dr. Hall knew
that Keebler was likely to commit suicide. We have held that … the
question of whether a legal duty exists is essentially a question of law
for the court, to be resolved by determining whether the injury was
foreseeable.”) (citations omitted); Maurer v. 8539, Inc., No.
01-09-00709-CV, 2010 WL 5464160, at *3 (Tex. App. Dec. 30, 2010) (noting
that an employer “generally has no duty to protect an employee from
the unforeseeable criminal acts of a third party” (citing Barton v.
Whataburger, Inc., 276 S.W.3d 456, 461 (Tex. App. 2008))).

(33) E.g., Higazy v. Millennium Hotel & Resorts, 346 F. Supp.
2d 430, 456 (S.D.N.Y. 2004) (“To the extent a hotel owes a broader
duty to prevent confusion of ownership after an emergency evacuation,
Higazy cannot establish proximate causation, which shields a defendant
in a negligence suit from liability for unforeseeable injuries.”
(citing Derdiarian v. Felix Contracting Corp., 414 N.E.2d 166, 169 (N.Y.
1980))); Pavelko v. Breg, Inc., No. 09-cv1461-PAB-KMT, 2011 WL 782664,
at *5 (D. Colo. Feb. 28, 2011) C[T]he risk associated with this use was
entirely unforeseeable, and defendant did not breach any duty by not
warning doctors about it.”).

(34) See cases cited supra note 33.

(35) See W. Jonathan Cardi, Reconstructing Foreseeability, 46
B.C.L. REV. 921, 988 (2005) [hereinafter Cardi, Reconstructing
Foreseeability]; Jane Stapleton, The Internal Point of View in Law and
Ethics: III. Torts and the Internal Point of View in Legal Theory:
Evaluating Goldberg and Zipursky’s Civil Recourse Theory, 75
FORDHAM L. REV. 1529, 1556 (2006).

(36) Arthur Ripstein, Tort Law in a Liberal State, J. TORT L., June
2007, at 20, 23-24, available at
http://www.bepress.com/cgi/viewcontent.cgi?article=1049&context=jtl
(citing Immanuel Kant, The Metaphysics of Morals, in IMMAUEL KANT:
PRACTICAL PHILOSOPHY 394 [6:238] (Mary Gregor ed. & trans., 1996)
(1797).

(37) See Richard A. Posner, Wealth Maximization and Tort Law: A
Philosophical Inquiry, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 99,
108-09 (David G. Owen ed. 1995) (“In Aristotle’s theory of
corrective justice … the duty to rectify a wrong is simply that–a
duty– … [and] the theory of corrective justice quickly runs out of
steam”) (footnote omitted); Keith N. Hylton, The Internal Point of
View in Law and Ethics: III. Torts and the Internal Point of View in
Legal Theory: Duty in Tort Law: An Economic Approach, 75 FORDHAM L. REV.
1501, 1501 (2006).

(38) Cardi & Green, Duty Wars, supra note 2, at 671.

(39) Ernest J. Weinrib, The Disintegration of Duty, in EXPLORING
TORT LAW 143, 162-63 (M. Stuart Madden ed., 2005).

(40) Compare Cardi & Green, Duty Wars, supra note 2, at 718
(“In our view, people think about their daily actions in a way that
is act centered, not relational.”), and Esper & Keating,
Putting “Duty” in its Place, supra note 5, at 1256
(“[P]otential injurers usually cannot treat the different people
and diverse interests endangered by their conduct in different
ways.”), with Cardi, Reconstructing Foreseeability, supra note 35,
at 965 (“[D]uty generally (or at least often) is
relational….”), and Linda Ross Meyer, Unruly Rights, 22 CARDOZO
L. REV. 1, 12 (2000) (“[R]ights’ add an important dimension
not articulated by duties, as they not only give voice to self-respect,
but they also make duties relational–binding our duties to persons,
rather than principles.”), and Benjamin C. Zipursky, Sleight of
Hand, 48 WM. & MARY L. REV. 1999, 2022 (2007) (“[N]egligence
law in fact has rich relational duties. The form of breach that actually
applies to negligence law, therefore, must be such that we can think of
it as failing to use care toward plaintiff. The duty to use ordinary
care can be conceived of relationally in this manner: it is a matter of
taking ordinary care toward plaintiff.”) (footnote omitted); but
see CALNAN, supra note 1, at 48-49 C[T]he average negligence case
actually raises three different duty issues: (1) Whether the defendant
owes any duty at all; if so, (2) to whom the duty extends; and (3) what
the duty requires the defendant to do or refrain from doing.”)
(emphasis in original).

(41) Goldberg & Zipursky, Place of Duty, supra note 2, at 660.

(42) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM (2010).

(43) RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES [section] 3
(Discussion Draft 1999); accord RESTATEMENT (THIRD) OF TORTS: LIABILITY
FOR PHYS. & EMOT. HARM [section] 7(a) (2010).

(44) RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES [section] 6
(Discussion Draft 1999); accord RESTATEMENT (THIRD) OF TORTS: LIABILITY
FOR PHYS. & EMOT. HARM [section] 7(b) (2010).

(45) OLIVER WENDELL HOLMES, THE COMMON LAW 35 (1938)
(“[Judicial policy-based] legislati[on] [is] the secret root from
which the law draws all the juices of life.”).

(46) W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS,
[section] 96, 682 (5th ed. 1984) (discussing the relational duty
doctrine of privity in tort law as an example of society’s
viewpoint in the nineteenth century); see also William L. Prosser,
Palsgraf Revisited, 52 MICH. L. REV. 1, 15 (1953) (“There is a duty
if the court says there is a duty. Duty is only a word with which we
state our conclusion that there is or is not to be liability.”).

(47) See generally Goldberg & Zipursky, Moral of MacPherson,
supra note 3, at 1785-86.

(48) Goldberg & Zipursky, Place of Duty, supra note 2, at 662.

(49) Id. at 662, 668 (“Restatements are supposed to articulate
rules of law that draw their authority from the courts that adhere to
them.”).

(50) Id. at 705-07.

(51) Id. at 699 (“Duty in its primary sense raises the issue:
Was the defendant obligated to the plaintiff to exercise care to avoid
causing (or to prevent) the sort of harm suffered by the
plaintiff?.”).

(52) Id. at 698-99.

(53) Id. at 709.

(54) Edwards v. Honeywell, Inc., 50 F.3d 484 (7th Cir. 1995).

(55) Id. at 492.

(56) Goldberg & Zipursky, Place of Duty, supra note 2, at 713.

(57) Id.

(58) Id. at 713-14; e.g., Albert v. Hsu, 602 So. 2d 895, 898 (Ala.
1992) (finding “no duty” owed by defendant’s restaurant
to patron struck by car driven by third party in defendant’s
parking lot); Washington v. City of Chicago, 720 N.E.2d 1030, 1033 (Ill.
1999) (finding that the city owed “no duty” to plaintiffs for
faulty design of raised street median under circumstances in which fire
truck, driving into that median, had lost control and struck
plaintiffs’ car).

(59) Goldberg & Zipursky, Place of Duty, supra note 2, at
714-15; see Peterson v. Spink Elec. Coop., 578 N.W.2d 589, 593 (S.D.
1998) (determining the defendant electrical company retained by farmer
to fix motor owed “no duty” to farmer’s son who was
shocked by extension cord, which had an unforeseen defect, after
defendant had replaced blown fuse); Akins v. Glens Falls City Sch.
Dist., 424 N.E.2d 531, 532-533 (N.Y. 1981) (determining that the scope
of landowner’s duty did not extend to placing protective fence
around baseball field to shield spectators from foul balls).

(60) Goldberg & Zipursky, Place of Duty, supra note 2, at 717.

(61) Id. at 721; Edwards v. Honeywell, Inc., 50 F.3d 484, 488 (7th
Cir. 1995).

(62) Goldberg & Zipursky, Place of Duty, supra note 2, at 718
(footnote omitted).

(63) Id.

(64) E.g., Strauss v. Belle Realty Co., 482 N.E.2d 34, 36 (N.Y.
1985) (“Considerations of privity are not entirely irrelevant in
implementing policy. Indeed, in determining the liability of utilities
for consequential damages for failure to provide service–a liability
which could obviously be ‘enormous,’ and has been described as
‘sui generis,’ rather than strictly governed by tort or
contract law principles–courts have declined to extend the duty of care
to noncustomers.” (emphasis in original) (citation omitted)).

(65) Goldberg & Zipursky, Place of Duty, supra note 2, at 721.

(66) Id.

(67) Id. at 722.

(68) Id. at 722-23.

(69) Id. at 731.

(70) CALNAN, supra note 1, at 3.

(71) Id. at 2, 131 n.23. Cf. Ernest J. Weinrib, Corrective Justice,
77 IOWA L. REV. 403, 424 (1992) (“In natural right theory, the
embodiment of the abstract will in one’s body and property creates
rights that other agents are under a duty to respect. The duty is owed
specifically to the holder of the right, and the violation of that duty
entitles the holder of the right to a legal remedy.”); Ernest J.
Weinrib, Law as a Kantian Idea of Reason, 87 COLUM. L. REV. 472, 486
(1987) (“Kant’s notion of nermativity is extraordinarily
elegant. Obligation refers to what must be done and raises the
philosophical problem of how the elements of necessity and action are
combined. If they were separate, how could action be subject to
obligation except by an impermissible inference of what ought to be done
from what is done?”) (footnote omitted).

(72) CALNAN, supra note 1, at 15.

(73) Goldberg & Zipursky, Moral of MacPherson, supra note 3, at
1744.

(74) Robert L. Rabin, The Duty Concept in Negligence Law: A
Comment, 54 VAND. L. REV. 787, 799 (2001).

(75) Id.

(76) Patrick J. Kelley, Restating Duty, Breach, and Proximate Cause
in Negligence Law: Descriptive Theory and the Rule of Law, 54 VAND. L.
REV. 1039, 1050 (2001).

(77) Id. at 1051.

(78) Id.

(79) See infra Part IV.

(80) Dimick v. Schiedt, 293 U.S. 474, 486 (1935).

(81) See Joseph P. Liu, Federal Jury Instructions and the
Consequences of a Successful Insanity Defense, 93 COLUM. L. REV. 1223,
1225-26 (1993).

(82) Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L.
REV. 229, 235 (1985); Matthew P. Harrington, The Law-Finding Function of
the American Jury, 1999 WIS. L. REV. 377, 380 (1999) (“The drive to
limit the law-finding function was entirely a judge-led exercise,
carried out … [first and foremost to satisfy] the growing desire for
stability in the law.”).

(83) HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC
PROBLEMS IN THE MAKING AND APPLICATION OF LAW 350 (William N. Eskridge,
Jr. & Philip P. Frickey eds., The Found. Press, Inc. 1994) (1958).

(84) Monaghan, supra note 82, at 235.

(85) Id. at 235-36.

(86) Id. at 236; Daniel J. Steinbock et al., Expert Testimony on
Proximate Cause, 41 VAND. L. REV. 261,274-75 (1988).

(87) Valerie P. Hans & Andrea J. Appel, The Jury on Trial, in A
HANDBOOK OF JURY RESEARCH [section] 3.03(b), at 3-14 (Walter F. Abbott
& John Batt eds., 1999).

(88) Cf. Davina Cooper, Opening Up Ownership: Community Belonging,
Belongings, and the Productive Life of Property, 32 LAW & SOC.
INQUIRY 625, 649 (2007) (“[T]he generation of a self-reflexive
sense of ‘who we are’ may invariably follow authoritative
assertions of collective stewardship, as occurred at the High
Court….”).

(89) See Hubbard v. United States, 514 U.S. 695, 711 (1995)
(“Adherence to precedent also serves an indispensable institutional
role within the Federal Judiciary. Stare decisis is a ‘basic
self-governing principle within the Judicial Branch, which is entrusted
with the sensitive and difficult task of fashioning and preserving a
jurisprudential system that is not based upon an ‘arbitrary
discretion.”‘) (citations omitted); Senor T’s Rest. v.
Indus. Comm’n, 641 P.2d 877, 881 (Ariz. Ct. App. 1981) (Froeb, J.,
concurring) (“To me, the result is a garbled judicial voice which
destroys our institutional role and reduces the court to a mere
case-by-case, error-correcting function based upon shifting sands of
authority. On the other hand, the principle of stare decisis is well
served where one department is disposed to follow an earlier precedent
except where disagreement flows from the most cogent of reasons. The
stability and credibility of the court as a court is enhanced and its
precedents furnish a proper guide to the superior court.”). Cf.
Stapleton, supra note 35, at 1531-32 (“[B]y neglecting the
fundamentally different functions of final courts of appeal and trial
courts, Goldberg and Zipursky fail to perceive the force of precedent to
guide and structure the development of the law.”).

(90) MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW,
1780-1860 2 (1977).

(91) Id. at 3 (quoting Palmer v. Mulligan, 3 Cai. R. 307, 314
(1805) (Livingston, J.)).

(92) Id. (quoting Thurston v. Koch, 4 Dall. 348, 352 (C.C.D. Penn.
1805) (Peters, J.)).

(93) See Stephen M. Feldman, Diagnosing Power: Postmodernism in
Legal Scholarship and Judicial Practice (With an Emphasis on the Teague
Rule Against New Rules in Habeas Corpus Cases), 88 NW. U. L. REV. 1046,
1075-78 (1994) (discussing differences between Justices Scalia and
Rehnquist on postmodern self-reflexive reasoning in relation to the
Teague rule).

(94) E.g., Africa v. City of Philadelphia (In re City of Phila.
Litig.), 158 F.3d 723, 727 (3d Cir. 1998) (“[A] party’s
participation in a bench trial without objection waives any Seventh
Amendment right to a jury trial that the party may have had.”)
(citing Wilcher v. City of Wilmington, 139 F.3d 366, 378-79 (3d Cir.
1998)).

(95) Eleanor Swift, A Foundation Fact Approach to Hearsay, 75
CALIF. L. REV. 1339, 1369 (1987).

(96) See, e.g., M. Isabel Medina, A Matter of Fact: Hostile
Environments and Summary Judgments, 8 S. CAL. REV. L. & WOMEN’S
STUD. 311, 361 (1999) (“Juries serve to inject community values
into the legal process.”) (citing Stephen Landsman, The History and
Objectives of the Civil Jury System, in VERDICT: ASSESSING THE CIVIL
JURY SYSTEM 22-60 (Robert E. Litan ed. 1993) (tracing the history of the
jury and its evolving roles and purposes)).

(97) See Ashcroft v. ACLU, 535 U.S. 564, 576 (2002) (featuring both
sides agreeing that jurors consider community standards when
deliberating upon child internet pornography prosecutions, while
disagreeing about the nature of the community considered); Barry v.
Edmunds, 116 U.S. 550, 564-65 (1886) (“It was [the jury’s]
right to look to the particular circumstances of the case, and give such
damages as the facts were deemed by them to warrant, and as would, in
their judgment, be adequate, not only for compensation, but also for
prevention.” (internal quotation marks omitted)); Jong Hi Bek v.
United States, No. 2:08CV-290 RM, 2008 U.S. Dist. LEXIS 96284, at *34
(N.D. Ind. Nov. 24, 2008) (“The jury was instructed to consider the
evidence to determine whether Dr. Bek was distributing controlled
substances other than for a legitimate medical purpose or not within the
bounds of professional medical practice and to consider testimony
relating to ‘norms’ of professional practice when making this
determination.”).

(98) United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994)
(“A prosecutor may not urge jurors to convict a criminal defendant
in order to protect community values, preserve civil order, or deter
future lawbreaking. The evil lurking in such prosecutorial appeals is
that the defendant will be convicted for reasons wholly irrelevant to
his own guilt or innocence.”) (quoting United States v. Monaghan,
741 F.2d 1434, 1441 (D.C. Cir. 1984)).

(99) Goldberg & Zipursky, Moral of MacPherson. supra note 3, at
1744.

(100) Goldberg & Zipursky, Place of Duty, supra note 2, at 701
(discussing Harper v. Herman, 499 N.W.2d 472 (Minn. 1993)).

(101) Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993).

(102) Id. at 473.

(103) Id. at 474.

(104) Id. at 475.

(105) Id. at 474-75 (citing KEETON ET AL., supra note 46, [section]
56, at 374).

(106) CALNAN, supra note 1, at 2-3, 32.

(107) See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC
STRUCTURE OF TORT LAW 143-44 (1987) (comparing liability for performing
a rescue to a tax on activities that would give rise to a duty to
rescue).

(108) CALNAN, supra note 1, at 5, 22-23, 120; RONALD DWORKIN,
LAW’S EMPIRE 239 (1986).

(109) DWORKIN, supra note 108, at 231, 237, 239.

(110) See generally Miles, Inc. v. Scripps Clinic & Research
Found., 810 F. Supp. 1091, 1097 (S.D. Cal. 1993) (referring to the
patient’s right to make autonomous decisions as an important policy
consideration); Matt v. Burrell, Inc., 892 S.W.2d 796, 797 (Mo. Ct. App.
1995) (using policy considerations to find that a duty of reasonable
care exists); Duncan v. Rzonca, 478 N.E.2d 603, 613 (Ill. App. Ct. 1985)
(using public policy consideration in assessing whether or not there is
a duty).

(111) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1229.

(112) Id.

(113) Id. at 1225, 1236, 1240.

(114) Id. at 1242.

(115) Id. at 1228.

(116) Id. at 1231, 1235, 1237 n.46.

(117) Id. at 1232.

(118) Id. at 1241.

(119) Id. at 1251 (footnote omitted); see John C.P. Goldberg &
Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of
Risk, Attractive Nuisance, and Other “Quaint” Doctrines Can
Improve Decisionmaking in Negligence Cases, 79 S. CAL. L. REV. 329, 340
(2006) (“[C]omprehending … duty in its primary sense calls for a
relational inquiry that asks whether the alleged tortfeasor owed it to
persons such as the victim to take reasonable care to avoid causing harm
of the type suffered by the victim.”); Goldberg & Zipursky,
Moral of MacPherson, supra note 3, at 1832-39 (explaining how duty in
the common law of negligence is dependent on the relationship between
the plaintiff and the defendant).

(120) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1246-47.

(121) Id. at 1245, 1249 n.72.

(122) Id. at 1244.

(123) Id. at 1246.

(124) Id.

(125) Id. at 1246 n.66 (quoting Stapleton, supra note 35, at 1556).

(126) See Esper & Keating, Putting “Duty” in its
Place, supra note 5, at 1247-48.

(127) Stapleton, supra note 35, at 1556.

(128) E.g., James A. Henderson, Jr., Sellers of Safe Products
Should Not Be Required to Rescue Users from Risks Presented by Other,
More Dangerous Products, 37 SW. U. L. REV. 595, 595 (2008); but cf.
Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247, 251,
268-92 (1980) (endorsing a general duty to rescue within law’s
ethical traditions).

(129) See Christophe Jamin, Saleilles’ and Lambert’s Old
Dream Revisited, 50 AM. J. COMP. L. 701, 705 (2002) (quoting Raymond
Saleilles, Droit civil et droit compare, 61 REVUE INTERNATIONALE DE
DROIT COMPARE [R.I.D.C.] 24 (1911) (Fr.)) (‘”A juridical
construct is the enunciation as a positive formula of rational ideas,
drawn from social perspective, and reduced to specifics which eliminate,
as far as is possible, any form of [the] arbitrary.”‘); Cees
P. Middendorp, On the Conceptualization of Theoretical Constructs, 25
QUALITY & QUANTITY: INT’L J. METHODOLOGY 235, 235 (1991).

(130) See Young v. Conroy, No. 01-354 ADM/RLE, 2002 U.S. Dist.
LEXIS 1423, at *7-9, *12 (D. Minn., Jan. 25, 2002); Deal v. Kearney, 851
P.2d 1353, 1358 (AK 1993).

(131) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1248 (discussing Gregory C. Keating, Pricelessness and
Life: An Essay for Guido Calabresi, 64 MD. L. REV. 159 (2005)).

(132) C. Keating, Pricelessness and Life: An Essay for Guido
Calabresi, 64 MD. L. REV. 159, 167 (2005); Esper & Keating, Putting
“Duty” in its Place, supra note 5, at 1248.

(133) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1248.

(134) See Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1108
(8th Cir. 1996) (“[T]he reason that we compensate people (that is,
transfer money from defendants to plaintiffs) is because rights that are
grounded in considerations of humanity have been violated. We believe
that it is humane to monetize welfare losses associated with grief, pain
and

suffering, humiliation, mental anguish, and other intangible injuries
so that we can make plaintiffs whole.”).

(135) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1246.

(136) Id. at 1228.

(137) Id. at 1249-51.

(138) See generally Brad R. Roth, Just Short of Torture: Abusive
Treatment and the Limits of International Criminal Justice, 6 J.
INT’L CRIM. JUST. 215, 226 (2008), available at
http://jicj.oxfordjournals.org/content/early12008/04/081jicj.mqn012:
Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 986 (1995)
(“[In] contests involv[ing] moral and political issues … the
meaning of the rule is determined by moral and political judgments at
the point of application.”).

(139) See HYAM MACCOBY, THE PHILOSOPHY OF THE TALMUD 47 (2002).

(140) JONATHAN DANCY, ETHICS WITHOUT PRINCIPLES 7 (2004).

(141) Brad Hooker, Rule-Consequentialism, in ETHICAL THEORY: AN
ANTHOLOGY 482, 490 (Russ Sharer-Landau ed., 2007).

(142) MACCOBY, supra note 139, at 65 (citing Deuteronomy 20:17-18).

(143) Id. at 125. Alan Cooper gives a textual analysis of the
relationship between the mandate at Exodus 23:5 (paraphrased by Cooper
as “if you see your enemy’s loaded ass recumbent, although you
might be tempted to interfere with it in one way or another, you must
leave it alone”) and at Deuteronomy 22:4 (“If you see your
fellow’s ass or ox fallen on the road, do not ignore it; you must
help him raise it”). Alan Cooper, The Plain Sense of Exodus 23:5,
59 HEBREW UNION COLLEGE ANNUAL 1, 1-3 (1988). Either way, the duty runs
to particulars. Of course, God may be policy-making, but then where are
we? See JAMES OTIS, THE RIGHTS OF THE BRITISH COLONIES ASSERTED AND
PROVED 16 (1764) (“There can be no prescription old enough to
supersede the law of nature, and the grant of God Almighty….”).
The author thanks Beth Berkowitz for suggesting and sharing
Cooper’s fine article.

(144) Davis v. Consol. Rail Corp., 788 F.2d 1260 (7th Cir. 1986).

(145) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1258-59; see Davis, 788 F.2d at 1264 (“Although
the crew had no reason to think that Davis was under a car,
someone–whether an employee of Conrail or some other business invitee
to the yard (such as Davis)–might have been standing in or on a car or
between cars….”).

(146) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1259 n.98.

(147) Id. at 1245, 1249 n.72.

(148) Alani Golanski, Paradigm Shifts in Products Liability and
Negligence, 71 U. PITT. L. REV. 673, 684 (2010).

(149) E.g., Pryor v. Resort Condos. Int’l, Inc., No.
IP98-1370-C-T/G, 2000 U.S. Dist. LEXIS 10199, at *7 (S.D. Ind. July 19,
2000) (“The Pryors … alleg[ed] that the [defendant] knew, or
should have known, of the inherent danger [of criminal conduct]
surrounding the Villas Jazmin and had a duty to warn individuals
similarly situated to the Pryors, but failed to do so.”); Winters
v. Fru-Con Inc., 498 F.3d 734, 745 (7th Cir. 2007) (applying
“strict liability to ‘all persons in the distributive chain of
a defective product.”) (quoting Prompt Air, Inc., v. Firewall
Forward, Inc., 707 N.E.2d 235, 238 (Ill. App. Ct. 1999)); Murphy v.
Mactaw, Inc., No. S0653-06 Cncv, 2006 Vt. Super. LEXIS 37, at *4 (Vt.
Super. Ct., Chittenden Cnty. Dec. 20, 2006) (“[The plaintiffs]
complaint suggests … the employer’s duty of care towards
Pete’s employees as a group and also a duty of care owed personally
to the decedent … to take appropriate measures to avoid exposing them
to such risk.”).

(150) Golanski, Paradigm Shifts in Products Liability and
Negligence, supra note 148, at 684.

(151) E.g., Kelley v. Howard S. Wright Constr. Co., 582 P.2d 500,
505 (Wash. 1978) (“Placing ultimate responsibility on the general
contractor for job safety in common work areas will, from a practical,
economic standpoint, render it more likely that the various
subcontractors being supervised by the general contractor will implement
or that the general contractor will himself implement the necessary
precautions and provide the necessary safety equipment in those
areas.”); Esparza v. Skyreach Equip., Inc., 15 P.3d 188, 198 (Wash.
Ct. App. 2000) (“[A] post-sale duty to warn arises after a
manufacturer has sufficient notice about a specific danger associated
with the product.”) (citation omitted).

(152) See generally Golanski, Paradigm Shifts in Products Liability
and Negligence, supra note 148, at 673, 684-86, 698-708 (discussing how
Henderson’s conflation of duties in James A. Henderson, MacPherson
v. Buick Motor Company: Simplifying the Facts While Reshaping the Law,
in TORTS STORIES 41, 53 (Robert L. Rabin & Stephen D. Sugarman eds.
2003) leads to logically inconsistent outcomes).

(153) See Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d
1224, 1228 (10th Cir. 2007) (quoting Iglehart v. Bd. of Cnty.
Comm’rs of Rogers Cnty., 60 P.3d 497, 502 (Okla. 2002)).

(154) See Rosa v. City of Seaside, No. C 05-03577 JF, 2006 U.S.
Dist. LEXIS 12530, at *8 (N.D. Cal. Mar. 7, 2006); George v. Celotex
Corp., 914 F.2d 26, 28 (2d Cir. 1990); Borel v. Fibreboard Paper Prods.
Corp., 493 F.2d 1076, 1089-90 (5th Cir. 1973) (“[T]he manufacturer
is held to the knowledge and skill of an expert…. The
manufacturer’s status as expert means that at a minimum he must
keep abreast of scientific knowledge, discoveries, and advances and is
presumed to know what is imparted thereby. But even more importantly, a
manufacturer has a duty to test and inspect his product. The extent of
research and experiment must be commensurate with the dangers
involved.”) (footnotes omitted).

(155) Golanski, Paradigm Shifts in Products Liability and
Negligence, supra note 148, at 685 (citing City of Jackson v. Ball, 562
So. 2d 1267, 1270 (Miss. 1990) (“[T]he dangerous product user need
give no further warning after the contractor … has actual knowledge of
the danger.”) (citation omitted); Graham v. Ryerson & Sons, 292
N.W.2d 704, 707 (Mich. Ct. App. 1980) (“[T]here is no duty to warn
of dangers obvious to all users … or of specific dangers fully known
to the complainant at the time the injury occurred.”).

(156) See, e.g., Collins v. City of Harker Heights, 503 U.S. 115,
116 (1992) C[A] prior incident had given the city notice of the risks of
entering the sewer lines.”) (footnote omitted); Mobile & Ohio
R.R. Co. v. Vallowe, 73 N.E. 416, 418 (Ill. 1905) (“Where the
question of notice of a dangerous defect is involved, evidence of prior
similar accidents has been deemed competent on that question.”)
(citation omitted).

(157) See, e.g., Cover v. Cohen, 461 N.E.2d 864, 871 (N.Y. 1984)
(“Although a product be reasonably safe when manufactured and sold
and involve no then known risks of which warning need be given, risks
thereafter revealed by user operation and brought to the attention of
the manufacturer or vendor may impose upon one or both a duty to
warn.”) (citations omitted).

(158) See generally Guido Calabresi & Kenneth C. Bass, III,
Right Approach, Wrong Implications: A Critique of McKean on Products
Liability, 38 U. CHI. L. REV. 74, 76-89 (1971) (discussing how
determining liability can lead to a more efficient and optimal
allocation of costs).

(159) Mark A. Geistfield, Products Liability, in 1 ENCYCLOPEDIA OF
LAW AND ECONOMICS: TORT LAW AND ECONOMICS 287, 314 (2d ed. 2009).

(160) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1229.

(161) Gauci v. Ryan’s Family Steak Houses, Inc., Nos.
L-03-1248, L-03-1322, 2004 WL 1595132, at *2 (Ohio Ct. App. July 16,
2004) (citation omitted).

(162) United States v. United Mine Workers, 330 U.S. 258, 291
(1947).

(163) E.g., Nascimento v. Preferred Mut. Ins. Co., 513 F.3d 273,
276 (1st Cir. 2008) (citing Herbert A. Sullivan, Inc. v. Utica Mut. Ins.
Co., 788 N.E.2d 522, 530 (Mass. 2003); Specialty Nat’l Ins. Co. v.
OneBeacon Ins. Co., 486 F.3d 727, 732 (1st Cir. 2007)) C[T]he
interpretation of an insurance policy and the application of policy
language to known facts pose questions of law for the court to
decide.”); cf. Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It
is emphatically the province and duty of the judicial department to say
what the law is.”).

(164) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1228.

(165) United States v. Baxter, 394 F. App’x 377, 379 (9th Cir.
2010) (“The United States met its burden of establishing proximate
cause by showing how Vicky’s harm was generally foreseeable to
casual users of child pornography like Baxter.”).

(166) Cardi, Purging Foreseeability, supra note 3, at 741.

(167) RESTATEMENT (SECOND) OF CONTRACTS [section] 1 (1981).

(168) See Henke v. U.S. Dep’t of Commerce, 83 F.3d 1445, 1450
(D.C. Cir. 1996) (citing 1 SAMUEL WILLISTON & RICHARD A. LORD, A
TREATISE ON THE LAW OF CONTRACTS 1:1 (4th ed. 1990)); cf. Hailin Jin et
al., Stereoscopic Shading: Integrating Multi-frame Shape Cues in a
Variational Framework, 1 PROC.: IEEE CONF. ON COMPUTER VISION &
PATTERN RECOGNITION; HILTON HEAD ISLAND, SOUTH CAROLINA, JUNE 13-15,
2000, at 169, 172 (2000).

(169) W.V. Quine, On the Nature of Moral Values, 5 CRITICAL INQUIRY
471, 473 (1979).

(170) See generally ALLAN GIBBARD, WISE CHOICES, APT FEELINGS
(1990), reprinted in MORAL DISCOURSE AND PRACTICE: SOME PHILOSOPHICAL
APPROACHES 179, 197 (Stephen Darwall et al. eds., 1997) (setting forth a
theory for how normative systems governing and dictating individual
behavior are developed via inference and “sense-experience”).

(171) Cf. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007)
(“Duty is defined as an ‘obligation, recognized by law, which
requires the defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm.”‘
(quoting Markowitz v. Ariz. Parks Bd., 706 P.2d 364, 366 (Ariz. 1985)));
A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 914 (Neb. 2010)
(“[W]e have defined a ‘duty’ as an obligation, to which
the law gives recognition and effect, to conform to a particular
standard of conduct toward another.” (citing Schmidt v. Omaha Pub.
Power Dist. 515 N.W.2d 756 (Neb. 1994))).

(172) See Bangert v. Shaffner, 848 S.W.2d 353, 355-56 (Tex. Ct.
App. 1993). The court joined the group of courts that have decided to
provide a remedy to athletes harmed by other players’ reckless or
intentional misconduct, continuing the grant of immunity only within the
reasonable confines of the players’ consent to physical contact.
Id.

(173) But cf. H.L.A. HART, THE CONCEPT OF LAW 87 (2d ed. 1994)
(“[T]he insistence on importance or seriousness of social pressure
behind the rules is the primary factor determining whether they are
thought of as giving rise to obligations.”). We take a weaker view
of “obligation” rooted in the perception of obligation rather
than in a conceptual analysis of actual obligation, although Hart, too,
may be speaking of perceptions. There is little social pressure
underlying the rule that we fill the parking meter before our time
expires, yet we perceive an obligation to do so. See Rector v. City
& County of Denver, 122 P.3d 1010, 1016 (Colo. App. 2005)
(“[L]ate fees assessed for parking meter violations arise out of a
consumer obligation….”). Also, one may think of shelving books
and paying meters as “conventions,” but to the extent that
neglect engenders some harm we may aptly perceive an obligation to
conform to those conventions. See Heidi M. Hurd, Sovereignty in Silence,
99 YALE L.J. 945, 1022 (1990).

(174) See supra notes 125-35 and accompanying text.

(175) Jeremy Waldron, Moments of Carelessness and Massive Loss, in
PHILOSOPHICAL FOUNDATIONS OF TORT LAW 387, 388 (David G. Owen ed.,
1995).

(176) Id. at 388, 389.

(177) Id. at 390 (“The idea that how things go for a person
should bear some sort of relation to how well he has acted informs our
assessment of the world on all sorts of fronts.”).

(178) See Edmonds v. Compagnie Generale Transatlantique, 443 U.S.
256, 275 n.2 (1979) (Blackmun, J., dissenting) (‘The common-law
rule [of joint and several liability] serves largely to protect
plaintiffs from defendants who are unable to pay judgments entered
against them.”); cf. Gregory C. Keating, Distributive and
Corrective Justice in the Tort Law of Accidents, 74 S. CAL. L. REV. 193,
223 (2000) (“Those unlucky few who inflict injury cannot, on
balance, claim that they are unjustly held accountable for the harm that
their wrongdoing has caused, but they might justly complain that a
system under which they alone bear the costs of the injuries they
inflict is less fair than one which pools those losses among all those
who create similar negligent risks.”) (footnote omitted).

(179) RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 109 (1977)
(“Hercules constructs his political theory as an argument about
what the legislature has, on this occasion, done.”).

(180) JOSEPH RAZ, PRACTICAL REASON AND NORMS 133-34 (1975)
(“Cannot John determine whether he owes 100 [pounds sterling] to
Alan or whether Paul owes money to Jack?”).

(181) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1230.

(182) Id. at 1225 (“The role of duty doctrine … is to fix
the legal standard … [and] [t]herefore, duty rulings normally are and
normally ought to be both rare and relatively general.”).

(183) Brown v. Crown Equip. Corp., 554 F.3d 34, 36 n.3 (1st Cir.
2009).

(184) Cf. RESTATEMENT (SECOND) OF TORTS [section] 46 cmt. d (1965).
Liability for intentional infliction of emotional distress is found
where “the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, ‘Outrageous!'” Id.

(185) Jutzi-Johnson v. United States, 263 F.3d 753, 756 (7th Cir.
2001) (“The duty is a recognition that the unforeseeable has become
foreseeable to the relevant community.”); 532 Madison Ave. Gourmet
Foods, Inc. v. Finlandia Ctr., Inc., 750 N.E.2d 1097, 1101 (N.Y. 2001)
(“In drawing lines defining actionable duty, courts must therefore
always be mindful of the consequential, and precedential, effects of
their decisions.”); Tarasoff v. Regents of Univ. of Cal., 551 P.2d
334, 342 (Cal. 1976) (adopting a duty analysis based upon the balancing
of several considerations, including ‘”consequences to the
community of imposing a duty to exercise care with resulting liability
for breach”‘ (citation omitted)); see supra notes 96-98 and
accompanying text.

(186) W.V. QUINE, THE ROOTS OF REFERENCE 68 (Eugene Freeman ed.,
1974).

(187) Brown, 554 F.3d at 36 n.3 (quoting Fortin v. Roman Catholic
Bishop of Portland, 871 A.2d 1208, 1232 (Me. 2005)).

(188) Id. at 36 (noting that plaintiff accurately “thought
that a jury would be sympathetic to finding a duty to warn on the
present facts”); see also, Sowers v. Tri-Cnty. Tel. Co., 512 N.E.2d
208, 209 (Ind. Ct. App. 1987) (“[W]e hold that Tri-County owed a
duty to inspect to any business invitees it invited to trim
trees.”);. Bowman v. Stouman, 141 A. 41, 43 (Pa. 1928) (“The
question now develops, [w]hat was the duty of a driver who saw a boy
enter a place of danger and continue therein?”).

(189) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1228.

(190) Id. at 1240; cf. Neal R. Feigenson, Can Tort Juries Punish
Competently?, 78 CHI.-KENT L. REV. 239, 244 (2003) (reviewing CASE R.
SUNSTEIN ET AL., PUNITIVE DAMAGES: HOW JURIES DECIDE (2002)
(“[B]ecause juries may legitimately bring to the justice system
values that judges may not adequately express, and because those
different values may sometimes lead juries to decide cases differently
than judges would, it would be odd to rely too heavily on the judicial
norm (or the legal norm as construed by judges) to evaluate juries’
decisions.”).

(191) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1227-28 (analyzing the California court’s decision
in Monreal v. Tobin, 72 Cal. Rptr. 2d 168 (Cal. Ct. App. 1998)).

(192) Id. at 1228 (quoting Monreal, 72 Cal. Rptr. 2d at 170).

(193) Id. at 1225.

(194) Monreal v. Tobin, 72 Cal. Rptr. 2d 168, 170 (Cal. Ct. App.
1998).

(195) Id. at 176 (emphasis omitted).

(196) Id. at 175; Holdampf v. A.C. & S., Inc. (In re N.Y.C.
Asbestos Litig.), 840 N.E.2d 115, 119 (N.Y. 2005); Kenneth W. Simons,
Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at
the Controversy, 41 LOY. L.A.L. REV. 1171, 1184 (2008) (“[A]
consequentialist might instead specify the scope of the legal duty not
to be negligent by reference not merely to the risks that it would be
justified or unjustified for an individual to take, but also to the
other, second-order costs and benefits of employing the
individual-focused legal rule.”).

(197) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1227-28.

(198) See supra notes 147-51 and accompanying text.

(199) Monreal, 72 Cal. Rptr. 2d at 176.

(200) Esper & Keating, Putting “Duty”in its Place,
supra note 5, at 1228.

(201) Id.

(202) Monreal, 72 Cal. Rptr. 2d at 171.

(203) See id. at 170.

(204) Cf. RICHARD A. WASSERSTROM, The Obligation to Obey the Law,
in THE DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS 17, 40
(William A. Edmunson ed., 1999) (“It may be true that on some
particular occasions the consequences of disobeying a law will in fact
be less deleterious on the whole than those of obeying it–even in a
democracy.”).

(205) McGettigan v. Bay Area Rapid Transit Dist., 67 Cal. Rptr. 2d
516 (Ct. App. 1997).

(206) Esper & Keating, Putting “Duty” in its Place,
supra note 5, at 1226 (citing McGettigan, 67 Cal. Rptr. 2d at 518).

(207) Id. at 1270 n.124.

(208) See id. at 1228.

(209) See Aquino v. Higgins, 938 N.E.2d 1006, 1006 (N.Y. 2010)
(“Since the basis of any liability on defendants’ part,
assuming proximate cause, rests on the duty to supervise, rather than
their duty as landowners, it is not dispositive that the injury occurred
off premises. As a result, summary judgment should not have been granted
in defendants’ favor and the cause of action for negligent
supervision should be reinstated.” (citation omitted)).

(210) Cf. Council v. Connell, No. 08 Civ. 11357(LTS)(KNF), 2010 WL
1140879, at *3 (S.D.N.Y. Mar. 25, 2010) (“[T]he jury submitted
notes to the trial judge, among them a request for ‘[d]efinitions
of what is required for conspiracy printed on paper.”‘).

(211) McGettigan v. Bay Area Rapid Transit Dist., 67 Cal. Rptr. 2d
516, 520 (Ct. App. 1997) (quoting Marshall v. United Airlines, 110 Cal.
Rptr. 416, 418 (Ct. App. 1973)).

(212) Cardi & Green, Duty Wars, supra note 2.

(213) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(a) (2010).

(214) See id.

(215) Id. [section] 7(b).

(216) Cardi & Green, Duty Wars, supra note 2, at 678; Biakanja
v. Irving, 320 P.2d 16, 19 (Cal. 1958) (“The determination whether
in a specific case the defendant will be held liable to a third person
not in privity is a matter of policy and involves the balancing of
various factors, among which are the extent to which the transaction was
intended to affect the plaintiff, the foreseeability of harm to him, 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, and
the policy of preventing future harm.” (citations omitted)).

(217) Cardi & Green, Duty Wars, supra note 2, at 692-94.

(218) Id. at 692; RESTATEMENT OF TORTS [section] 1 cmt. d (1934);
RESTATEMENT (SECOND) OF TORTS [section] 1 cmt. d (1965).

(219) Cardi & Green, Duty Wars, supra note 2, at 697; DAN B.
DOBBS, THE LAW OF TORTS [section] 227, at 578 (2001); 3 FOWLER V. HARPER
ET AL., THE LAW OF TORTS [section] 18.6, at 712 (2d ed. 1986).

(220) Cardi & Green, Duty Wars, supra note 2, at 698-99; MORTON
J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF
LEGAL ORTHODOXY 57 (1992).

(221) Cardi & Green, Duty Wars, supra note 2, at 706-07; see
also Stapleton, supra note 35, at 1531 (“[T]here are areas of tort
law that can only be accounted for in instrumental terms, for example
torts that are explicitly based on the violation of some public policy
such as the tort of retaliation by an employer against an
employee.” (footnote omitted)).

(222) Cardi & Green, Duty Wars, supra note 2, at 706-07; see
also Esper & Keating, Putting “Duty” in its Place, supra
note 5, at 1241, 1251.

(223) Riegel v. Medtronic, Inc., 552 U.S. 312 (2008).

(224) Id. at 324 (quoting Cippollone v. Liggett Grp., Inc., 505
U.S. 504, 521 (1992)) (quoted in Cardi & Green, Duty Wars, supra
note 2, at 708 n.217).

(225) Cardi & Green, Duty Wars, supra note 2, at 708-09.

(226) Id. at 709.

(227) Id.

(228) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(a) (2010). Cardi & Green, Duty Wars, supra note 2,
at 709 n.220.

(230) Id. at 709-10.

(231) Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 102 (N.Y.
1928) (Andrews, J., dissenting) (“It is the act itself, not the
intent of the actor, that is important.” (citations omitted)).

(232) William Gareth Rees et al., Inversion of Atmospheric
Refraction Data, 8 J. OPTICAL SOC’Y AM. A 330, 330 (1991).

(233) See JAMES R. REST, DEVELOPMENT IN JUDGING MORAL ISSUES 3, 7
(1979) (discussing Lawrence Kohlberg’s view that morality is not a
function of conformity with prevailing group norms, and cannot be
assessed without knowing the actor’s point of view and intentions);
cf. Noam Chomsky, A Review of B.F. Skinner’s Verbal Behavior, in
READINGS IN LANGUAGE AND MIND 413, 416 (Heimer Geirsson & Michael
Losonsky eds., 1996) (discussing broad and narrow interpretations of
behavior in stimulus-response experimental results).

(234) See Cardi, Purging Foreseeability, supra note 3, at 780.

(235) See supra note 147-51 and accompanying text. Cardi and Green
distinguish between “circumstantial” relationality, concerning
the parties’ general proximity to one another, and
“substantive” relationality, concerning the parties’
substantive relationship or dealing giving rise to certain affirmative
duties. Cardi & Green, Duty Wars, supra note 2, at 715-16. Their
objection is to the more ubiquitous circumstantial type of duty, id. at
716, and this article, too. focuses on that super-category.

(236) Cardi & Green, Duty Wars, supra note 2, at 713.

(237) Id.

(238) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(b) (2010) (emphasis added).

(239) Cardi & Green, Duty Wars, supra note 2, at 709 (“In
section 7(b), the Third Restatement recognizes that at times, courts
decline to impose a duty, thereby withdrawing liability, due to some
principle or policy.” (footnote omitted)).

(240) E.g., MacPherson v. Buick Motor Co., 111 N.E. 1050, 1051
(N.Y. 1916); Winters v. FruCon Inc., 498 F.3d 734, 745 (7th Cir. 2007)
(“Although a literal reading of [section] 402A would limit strict
liability only to sellers of a product, Illinois applies strict
liability to ‘all persons in the distributive chain of a defective
product.'” (quoting Prompt Air, Inc., v. Firewall Forward,
Inc., 707 N.E.2d 235, 238 (Ill. App. Ct. 1999))).

(241) RESTATEMENT (SECOND) OF TORTS [section] 402A cmt. f (1965).

(242) Id.

(243) Galindo v. Precision Am. Corp., 754 F.2d 1212, 1217 (5th Cir.
1985); Adeyinka v. Yankee Fiber Control, Inc., 564 F. Supp. 2d 265, 275
(S.D.N.Y. 2008).

(244) Cardi & Green, Duty Wars, supra note 2, at 713-14. See
HART. CONCEPT OF LAW, supra note 173, at 84, regarding the significance
of the “internal point of view,” of how citizens conceive of
their duties.

(245) Cardi & Green, Duty Wars, supra note 2, at 720.

(246) Id. at 722.

(247) Cardi, Purging Foreseeability, supra note 3, at 740: see
Cardi & Green, Duty Wars, supra note 2, at 721 n.272, 722.

(248) Cardi, Purging Foreseeability, supra note 3, at 740-41. Cardi
and Green acknowledge that “the Third Restatement’s position
on foreseeability does not conform to the preponderance of existing
practice; most jurisdictions couch their statement of the ordinary duty
as contingent on there being a foreseeable risk of harm.” Cardi
& Green, Duty Wars, supra note 2, at 729 (footnote omitted).

(249) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(a) (2010).

(250) Id. at cmt. j.

(251) Cardi & Green, Duty Wars, supra note 2, at 724-25
(“[T]he Third Restatement would impose a duty even where the risk
created by a defendant’s conduct was not foreseeable, [and] …
E&K’s foreseeability proposal would remove few cases at the
duty stage that the Third Restatement would allow to pass.”).

(252) Id. at 725.

(253) See id. at 724-25.

(254) Id. at 724.

(255) See, e.g., Lenox, Inc. v. Triangle Auto Alarm, 738 F. Supp.
262, 268 (N.D. Ill. 1990) (“[F]oreseeability of a particular kind
of hazard is a consideration in determining … the scope of
duty….”); S. Md. Elec. Coop., Inc. v. Booth & Assocs., Inc,
CIV. A. No. HAR-88-547, 1989 WL 85060, at *3 (D. Md. July 25, 1989)
(“[T]he Court of Appeals has imposed an independent tort duty in
favor of persons who are foreseeably subjected to the risk of serious
personal injury.”); Scott & Fetzer Co. v. Montgomery Ward &
Co., 493 N.E.2d 1022, 1027 (Ill. 1986) (confirming that the lower
court’s finding of foreseeability of damages and consideration
relevant policy factors was proper in finding duty); Bolieu v. Sisters
of Providence in Wash., 953 P.2d 1233, 1240 (AK 1998) (advocating
imposition of a duty on the part of medical providers with respect to
communicable disease “in favor of those persons, such as spouses,
who are foreseeably most at risk”); J.C. Penney Co. v. Simon Prop.
Grp., Inc., 928 N.E.2d 579, 584 (Ind. Ct. App. 2010) (“[T]he risk
of being thrown from a horse and injured was foreseeable and the public
policy ‘favors imposing a duty on the YMCA here because the YMCA
attracted participants to [its camp] by offering horseback riding as
part of the weekend and by its direct involvement with the organization
of the trail ride.” (citing Thornhill v. Deka-Di Riding Stables,
643 N.E.2d 983, 987 (Ind. Ct. App. 1994))).

(256) Cardi, Purging Foreseeability, supra note 3, at 740.

(257) See id. at 787 (“[C]ourts sometimes ostensibly decide
the issue of duty on grounds of foreseeability, when in fact their
decisions rest on considerations of public policy.” (citation
omitted)).

(258) E.g., A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d
907, 917 (Neb. 2010) (“The duty of instructors to supervise and
protect students is well established under the Restatement (Second) of
Torts, the Restatement (Third) of Torts, and our current case law.”
(citations omitted)).

(259) Gipson v. Kasey, 150 P.3d 228 (Ariz. 2007); Cardi &
Green, Duty Wars, supra note 2, at 726 n.286.

(260) Gipson, 150 P.3d at 229.

(261) Id. at 230.

(262) Id.

(263) Id. at 231; Gipson v. Kasey, 129 P.3d 957, 960-62 (Ariz. Ct.
App. 2006).

(264) See Gipson, 150 P.3d at 231.

(265) Id. at 232-33 & n.4 (emphasis added) (citations omitted).

(266) See id. at 234 (Hurwitz, J., concurring).

(267) Tran v. Toyota Motor Corp., 420 F.3d 1310, 1313 (11th Cir.
2005).

(268) RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. [section] 2(b) cmt.
a (1998).

(269) Gipson, 150 P.3d at 230.

(270) See supra section 5 A.

(271) See also A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d
907, 916, 918-19 (Neb. 2010) (“It is evident that the university
had a landowner-invitee duty to protect against foreseeable acts even
had the attack in that case not been foreseeable … [and] our
disposition of this appeal would have been the same regardless [of the
section seven question, because the defendant school’s employees]
should have foreseen the danger.”). Cardi and Green do not, of
course, pin the integrity of their analysis on a clear-headed
application by the courts, and readily acknowledge that courts may often
be unclear or inconsistent under any regime. Cardi & Green, Duty
Wars, supra note 2, at 716-18.

(272) See Lancaster, 784 N.W.2d at 918.

(273) See Cardi, Purging Foreseeability, supra note 3, at 771.

(274) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(a) (2010).

(275) United States v. Lord, 404 F. App’x. 773, 778 (4th Cir.
2010) cert. denied, 131 S. Ct. 2940 (2011) (brackets in original); see
also Desir v. Vertus, 13 A.3d 428, 434 (N.J. Super. Ct. App. Div. 2011)
(“We briefly consider the scope of the duty of reasonable care owed
here. In general, the scope of the duty is defined by what a reasonably
prudent person would do under the same or similar circumstances.”
(citation omitted)).

(276) Gipson v. Kasey, 150 P.3d 228, 233 n.4 (Ariz. 2007)
(citations omitted); see supra note 264 and accompanying text.

(277) RAZ, supra note 180, at 32.

(278) Cardi & Green, Duty Wars, supra note 2, at 726.

(279) Id.

(280) Id.

(281) RAZ, supra note 180, at 154. “Judges, acting as judges,
act on the belief that laws are valid reasons for action.” Id. at
171.

(282) Cardi & Green, Duty Wars, supra note 2, at 726 (emphasis
added). Cardi and Green also slip, perhaps, when they emphasize that
“both of the two major contemporary torts treatises are in accord
with the Third Restatement … [in] observing that a default duty of
reasonable care exists.” Id. at 697 (footnote omitted). However, as
Cardi and Green quote it, one of the two treatises explains: that
“[b]y and large, then, people owe a duty to use care in connection
with their affirmative conduct, and they owe it to all who may
foreseeably be injured if that conduct is negligently carried out.”
HARPER ET AL., supra note 219, [section] 18.6, at 712 (emphasis added)
(quoted in Cardi & Green, Duty Wars, supra note 2, at 697 n.157.).

(283) See Paulsen v. CNF Inc., 559 F.3d 1061, 1081 (9th Cir. 2009);
Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993) C[A]ll persons have
a duty to use reasonable care to refrain from conduct that will
foreseeably cause injury to others.” (citation omitted)).

(284) RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYS. & EMOT.
HARM [section] 7(a) (2010) (emphasis added).

(285) E.g., De Voto v. St. Louis Pub. Serv. Co., 251 S.W.2d 355,
358-59 (Mo. Ct. App. 1952) (“The duty to maintain a careful lookout
was a continuous one, while the duty to warn could only arise when the
driver of the bus, in the exercise of due care, became aware, either
actually or constructively, that a collision would likely occur unless a
warning was given.”).

(286) Huggins v. Aetna Cas. & Sur. Co., 264 S.E.2d 191, 192
(Ga. 1980); Glanzer v. Shepard, 135 N.E. 275, 276-77 (N.Y. 1922);
RESTATEMENT (SECOND) OF TORTS [section] 324A (1965) (“One who
undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a
third person or his things, is subject to liability to the third person
for physical harm resulting from his failure to exercise reasonable care
to protect his undertaking, if (a) his failure to exercise reasonable
care increases the risk of such harm….”).

(287) Washington & Georgetown R.R. Co. v. McDade, 135 U.S. 554,
574 (1890) (“In order to aid the jury in determining whether the
defendant had exercised reasonable care in providing and maintaining the
machinery actually in use, it was competent to show what other kinds of
machinery or appliances were used elsewhere, and might have been used at
shaft No. 1.” (citation omitted)); Bertrand v. Alan Ford, Inc., 537
N.W.2d 185, 193 (Mich. 1995) (“Whether this risk of harm was
unreasonable and whether the defendant breached a duty to exercise
reasonable care by failing to remedy the danger are issues for the jury
to consider.”).

(288) E.g., California Pattern Jury Instructions–Civil [section]
1004, at 609 (2011) (“There may be a duty to remedy a dangerous
condition … if the condition is foreseeable.”); New Mexico
Pattern Jury Instructions–Civil [section] 13:1320 (2011) (“The
[owner’s] [occupant’s] duty to protect visitors arises from a
foreseeable risk that a third person will injure a visitor and, as the
risk of danger increases, the amount of care to be exercised by the
[owner] [occupant] also increases.” (brackets in original)); Ralph
King Anderson, Jr., South Carolina Requests to Charge-Civil [section]
11-4, at 116 (2002) (titled: “Builder Negligence–Duty on Builder
to Refrain from Constructing Housing he Knows or Should Know will Pose
Serious Risk of Physical Harm”); see also Gallick v. Balt. &
Ohio R.R. Co., 372 U.S. 108, 118 (1963) (“The jury had been
instructed that… [the] defendant’s duty was measured by what a
reasonably prudent person would anticipate as resulting from a
particular condition–‘defendant’s duties are measured by what
is reasonably foreseeable under like circumstances’–by what
‘in the light of the facts then known, should or could reasonably
have been anticipated.'” (footnote omitted)); Magoffe v. JLG
Indus., Inc., 375 F. App’x 848, 857 n.17 (10th Cir. 2010)
(“The district court also addressed New Mexico’s Civil Uniform
Jury Instruction 13-1402, which requires suppliers to avoid foreseeable
risks of injuries to users of its products, and Civil Uniform Jury
Instruction 13-1425, which requires adequate warnings to reasonably
foreseeable users disclosing the nature and extent of a danger not
covered by a general warning or simple directive to use or not to use
the product in a certain way.”); Rodriguez-Quinones v. Jimenez
& Ruiz, S.E., 402 F.3d 251, 256 (1st Cir. 2005) (“The jury in
this case was instructed that an owner or lessor has no duty to protect
tenants from criminal acts unless they are foreseeable….”); Hynes
v. Energy West, Inc., 211 F.3d 1193, 1198 (10th Cir. 2000) (affirming
the accuracy of jury instruction that “any increase in foreseeable
danger requires increased care”); cf. McDade, 135 U.S. at 574
(crediting the railroad’s requested jury instruction that
“‘[t]he machinery need not be the safest of the kind, provided
it is such as a person of reasonable care and prudence would
provide'”).

(289) See supra note 273 and accompanying text.

(290) Cardi, Purging Foreseeability, supra note 3, at 771.

(291) Id. at 772.

(292) Id.

(293) Cardi, Reconstructing Foreseeability, supra note 35, at 924.

(294) Id. at 925 (footnotes omitted).

(295) STEVEN H. GIFIS, LAW DICTIONARY 54 (3d ed. 1991); Munroe v.
Hartford St. Ry. Co., 56 A. 498, 500-01 (Conn. 1903).

(296) E.g., IDAHO CODE ANN [section][section] 49-630, 49-631
(2011): Leavitt v. Swain, 963 P.2d 1202, 1206 (Idaho Ct. App. 1998)
(“Icy road conditions do not serve to excuse a violation of these
statutes.” (citations omitted)).

(297) Cardi, Reconstructing Foreseeability, supra note 35 at
926-27.

(298) See generally CAUSATION (Ernest Sosa & Michael Tooley
eds., 1993) (providing a compilation of several different approaches to
the analysis of causation).

(299) See generally Golden v. CH2M Hill Hanford Grp., Inc., 528
F.3d 681,683 (9th Cir. 2008) (“To survive summary judgment on a
toxic tort claim for physical injuries, Golden had to show that he was
exposed to chemicals that could have caused the physical injuries he
complains about (general causation), and that his exposure did in fact
result in those injuries (specific causation).” (citing Jaros v.
E.I. DuPont (In re Hanford Nuclear Reservation Litig., 292 F3d 1124, 133
(9th Cir. 2002)).

(300) Wesley C. Salmon, Causality: Production and Propagation, in
CAUSATION, supra note 298, at 154.

(301) McGettigan v, Nat’l Bank of Wash., 320 F.2d 703, 709 n.7
(D.C. Cir. 1963) (quoting Hitaffer v. Argonne Co., 183 F.2d 811, 815
(D.C. Cir. 1950)): Albers v. County of L.A., 398 P.2d 129, 137 (Cal.
1965) (“[A]ny actual physical injury to real property proximately
caused by the improvement as deliberately designed and constructed is
compensable under article I, section 14, of our Constitution whether
foreseeable or not.”).

(302) See supra note 301 and accompanying text.

(303) Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993);
Henderson v. Bowden, 737 So. 2d 532, 535-36 (Fla. 1999).

(304) Cardi, Purging Foreseeability, supra note 3, at 749
(“[F]oreseeability operates in the context of breach as a form of
risk contextualization–a foreseeability of general focus … which
helps to define the blameworthiness of a defendant’s conduct. Under
the rubric of proximate cause, by contrast, the foreseeability inquiry
is not general but specific to the particular injury suffered by the
particular plaintiff at hand.”).

(305) Lopez v. Nutrimix Feed Co., 27 F. Supp. 2d 292, 297 (D.P.R.
1998) (“Foreseeability does not require that the precise risk or
exact harm which occurred have been foreseen or anticipated. The
essential factor is that the individual should have foreseen
consequences of the kind that in fact occurred.” (citation
omitted)).

(306) Smith v. Frank, 207 F. App’x 617, 620 (6th Cir. 2006)
(“An act or omission will not be considered a proximate cause of an
injury if a reasonable person could not have foreseen or anticipated the
injury.” (citing McClenahan v. Cooley, 806 S.W.2d 767 (Tenn.
1991))).

(307) Duenas v. Yama’s Co., Nos. 91-16923, 92-15885, 92-15919,
1993 WL 280407, *3 (9th Cir. July 26, 1993) (“[T]he [state] court
held that, based on public policy concerns, the government had no duty
to foresee and protect against extreme carelessness even if the
government was negligent in the design and maintenance of the
road.”); but cf. Cardi & Green, Duty Wars, supra note 2, at 722
C[F]oreseeability is inherently unamenable to categorical
decisionmaking….”).

(308) Johnstone v. City of Albuquerque, 145 P.3d 76, 80 (N.M. Ct.
App. 2006) (citations omitted); accord Rimbert v. Eli Lilly & Co.,
577 F. Supp. 2d 1174, 1233 (D.N.M. 2008).

(309) Cardi & Green, Duty Wars, supra note 2, at 712 (citing
Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928)).

(310) Id.

(311) Johnstone, 145 P.3d at 80.

(312) See generally Amy L. Wax, Against Nature–On Robert
Wright’s The Moral Animal, 63 U. CHI. L. REV. 307, 322 (1996)
(reviewing ROBERT WRIGHT, THE MORAL ANIMAL: EVOLUTIONARY PSYCHOLOGY AND
EVERYDAY LIFE (1994)) (“According to Wright, it is no accident that
cultural traditions that effectively channel and control natural desires
tend to call upon moral concepts of right, obligation, and duty. These
normative traditions capitalize on the biologically rooted attraction to
universal precepts, which in turn tend to maintain evolutionarily stable
cooperative arrangements.”).

(313) See BRIAN LEITER, NATURALIZING JURISPRUDENCE: ESSAYS ON
AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY 109 (2007)
(describing legal realism’s “Core Claim that judges respond
primarily to factual situation-types rather than legally valid norms or
doctrines”); KARL N. LLEWELLYN, CASES AND MATERIALS ON THE LAW OF
SALES, at x (1930) (“[R]aw facts repeatedly, and in defiance of our
legal ‘safeguards,’ break through undistorted to the
court’s consciousness in some cases and influence decision.”).

(314) See Santos v. Sunrise Medical, Inc., 351 F.3d 587, 593 (1st
Cir. 2003) (noting issue of “the manufacturer’s obligation to
foresee the way the product would be used”); Rojas v. Nogama
Constr. Corp., Civil No. 09-1149 (JAG), 2011 U.S. Dist. LEXIS 72791, at
*8 (D.P.R. July 6, 2011) (“The duty to exercise due care comprises
the obligation to foresee and to prevent the occurrence of damages which
may be reasonably foreseen”); City of Tallahassee v. Hawes, 87 So.
765, 767 (Fla. 1921) (“[T]he customary hitching of horses to posts
supporting awnings over sidewalks in the city put upon the city an
‘obligation to foresee and guard against’ injuries to
pedestrians caused by the jerking of the posts from their places by
horses hitched thereto”).

Alani Golanski, L.L.M., James Kent Scholar, Columbia University
School of Law; M.A. Philosophy, Graduate Center of the City University
of New York; J.D., University of Connecticut School of Law. The author
is appellate counsel in environmental torts and products liability law
at Weitz & Luxenberg, P.C., New York, New York.