Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of Heaven v. Pender and MacPherson v. Buick forward, courts have issued rulings and penned rhetoric establishing the general duty that commentators have recognized. Because the obligation to take reasonable care is a highly general and pervasive one, “duty” is only an issue in special cases—in exceptional circumstances where the legal standard applicable to the kind of conduct at issue must be tightened, relaxed, or suspended. Contemporary California courts, however, are in the midst of unsettling a century’s worth of doctrine by making “duty” a live issue in every case. This article explores and criticizes their efforts.
We argue that the contemporary use of “duty” doctrine by the California courts has three pernicious effects. First, it reconfigures the division of labor among tort, contract and property in a way which is both haphazard and undesirable. Haphazard because the reconfiguration is fact-specific ruling by fact-specific ruling. Undesirable because these decisions chip away at the twin revolutions of Buick v. MacPherson Motor Co., and Rowland v. Christian. To the extent that the rash of “no duty” decisions in contemporary California form a larger figure in the carpet of California tort law, they give the free use of property and freedom of contract priority over the safety and physical integrity of the person. This is exactly backwards: No sane person values her property or her economic interests more than her life, and it is indefensible partiality to value one’s own property or economic interests more than someone else’s life. Second, the contemporary use of “duty” doctrine by the California courts upsets the division of labor between judge and jury in an arbitrary and incoherent way. Traditional “duty: doctrine assigns the task of law articulation to judges and task of law application to juries. Making “duty” a live issue in every case makes hash of this coherent and principled division of labor, puts nothing in its place and, indeed, precludes a principled division of labor between judge and jury. Third, the practice of making “duty” a contestable issue in every case involves a conceptual contradiction. “Duty” cannot be up for grabs in every case, because the legal standard governing conduct cannot be up for grabs in every case. Legal norms guide conduct—give reasons for action. General legal norms cannot guide if they are perpetually up for post hoc revision.
The cure for what ails California law is to return “duty” doctrine to its proper, categorical role of fixing the legal standard applicable to the conduct at hand. “Duty” should be a nonissue in most cases of physical injury because, as the California legislature long ago decreed, “the general rule” is and ought to be that “all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct.”
Dilan Esper and Gregory C. Keating, Abusing "Duty", 79 S. Cal. L. Rev. 265 (2006).