The Cleaver, the Violin and the Scalpel: An Essay on Duty and the Third Restatement of Torts

Aaron D. Twerski, Brooklyn Law School

Abstract

The article takes issue with the approach taken by Third Restatement of Torts Proposed Final Draft that insists that no-duty or limited duty rules should be formulated only when a court can promulgate clear , categorical , bright-line rules that are applicable to a general class of cases. In this article I demonstrate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow the court to invade the province of juries whose task it is to apply law to facts. I contend that the kind of policy factors that give rise to no-duty determinations are very different than those a jury considers when deciding whether a defendant’s conduct was negligent.