7duty - WestlawNext

Tannuzzo, Angelo 9/27/2014
For Educational Use Only
7Duty, Restatement (Third) of Torts: Phys. & Emot. Harm 7 (2010)
Restatement (Third) of Torts: Phys. & Emot. Harm 7 (2010)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
Chapter 3. The Negligence Doctrine and Negligence Liability
7 Duty
Comment:
Reporters' Note
Case Citations - by Jurisdiction
(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct
creates a risk of physical harm.
(b) In 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.
Comment:
a. The proper role for duty. As explained in 6, Comment f, actors engaging in conduct that
creates risks to others have a duty to exercise reasonable care to avoid causing physical harm.
In most cases, courts can rely directly on 6 and need not refer to duty on a case-by-case basis.
Nevertheless, in some categories of cases, reasons of principle or policy dictate that liability should
not be imposed. In these cases, courts use the rubric of duty to apply general categorical rules
withholding liability. For example, a number of modern cases involve efforts to impose liability on
social hosts for serving alcohol to their guests. A jury might plausibly find the social host negligent
in providing alcohol to a guest who will depart in an automobile. Nevertheless, imposing liability
is potentially problematic because of its impact on a substantial slice of social relations. Courts
appropriately address whether such liability should be permitted as a matter of duty. Courts may
also, for the same reasons, determine that modification of the ordinary duty of reasonable care is
required. Thus, courts generally impose on sellers of products that are not defective at the time
2014 Thomson Reuters. No claim to original U.S. Government Works.

of sale the limited duty to warn of newly discovered risks, rather than the more general duty of
reasonable care, which a jury might find includes a duty to recall and retrofit the product so as to
eliminate the risk. Similarly, some courts have modified the general duty of reasonable care for
those engaging in competitive sports to a more limited duty to refrain from recklessly dangerous
conduct.
There are two different legal doctrines for withholding liability: no-duty rules and scope-ofliability doctrines (often called proximate cause). An important difference between them is that
no-duty rules are matters of law decided by the courts, while the defendant's scope of liability is a
question of fact for the factfinder. When liability depends on factors specific to an individual case,
the appropriate rubric is scope of liability. On the other hand, when liability depends on factors
applicable to categories of actors or patterns of conduct, the appropriate rubric is duty. No-duty
rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line
rules of law applicable to a general class of cases.
When addressing duty, courts sometimes are influenced by the relationship between the actor and
the person harmed. Thus, courts hold that landowners are free of negligence liability to some
trespassers. See Chapter 9. In a different vein, courts have been cautious about imposing liability
on physicians when their care for patients causes harm to third parties. At other times, courts focus
on particular claims of negligence, forbidding some but preserving others. Thus, a court might
hold that a landlord has no duty to provide security for rented space in a building, but has a duty of
reasonable care in providing security for common areas in the building. See Chapter 9. Courts also
sometimes hold that an actor has a more limited duty than reasonable care, such as an obligation
to avoid engaging in reckless conduct that causes physical harm. A number of the factors relevant
to these no-duty and modified-duty determinations are explained in Comments c-g.
The principle or policy that is the basis for modifying or eliminating the ordinary duty of care
contained in 7(a) may be reflected in longstanding precedent and need not be restated each
time it is invoked. Thus, the modified duty applicable to medical professionals, which employs
customary rather than reasonable care, reflects concerns that a lay jury will not understand what
constitutes reasonable care in the complex setting of providing medical care and the special
expertise possessed by professionals. At the same time, new concerns may arise that have not
previously been the basis for modification of the duty of reasonable care and, when those are
invoked, they should be identified and explained.
b. Procedural aspects of duty determination. A defendant has the procedural obligation to raise the
issue of whether a no-duty rule or some other modification of the ordinary duty of reasonable care
applies in a particular case. The appropriate method for a defendant to raise this issue is a matter for

the procedural rules of the jurisdiction. The jurisdiction's rules should provide adequate notice to
the plaintiff that the defendant claims he or she did not owe the plaintiff a duty of reasonable care.
Courts determine legislative facts necessary to decide whether a no-duty rule is appropriate in a
particular category of cases. In most cases, the adjudicative facts that bear on whether a duty exists
are not in dispute. When resolution of disputed adjudicative facts bears on the existence or scope
of a duty, the case should be submitted to the jury with alternative instructions. In such a case, the
plaintiff bears the burden of proof on facts necessary to establish a duty.
Illustration:
Illustration:
1. Sadie owns land adjacent to Sam's. She sues Sam, alleging that he failed to exercise
reasonable care to prevent a large tree branch on his land from falling on her land and
hitting her. Sam claims that Sadie was trespassing on his land when the branch hit
her. The law in the applicable jurisdiction imposes a duty on landowners only to avoid
wanton or willful injury to trespassers, while also imposing a general duty of reasonable
care to avoid causing harm to persons off the land. Sam has the procedural obligation
to notify Sadie that he will invoke the limited-duty rule applicable to trespassers. Then,
Sadie has the burden to prove that she was injured on her land if she wants to benefit from
the more favorable duty rule. If the evidence permits a finding that Sam was wanton or
willful, the court should submit the case to the jury with alternative instructions on his
duty. If the evidence would not support such a finding, the court should instruct the jury
that, if it finds Sam was negligent and Sadie was injured on her land, it should return a
verdict for Sadie, but if it finds Sadie was a trespasser, it should return a verdict for Sam.
c. Conflicts with social norms about responsibility. In deciding whether to adopt a no-duty rule,
courts often rely on general social norms of responsibility. For example, many courts have held
that commercial establishments that serve alcoholic beverages have a duty to use reasonable care
to avoid injury to others who might be injured by an intoxicated customer, but that social hosts
do not have a similar duty to those who might be injured by their guests. Courts often justify this
distinction by referring to commonly held social norms about responsibility. The rule stated in this
Section does not endorse or reject this particular set of rules. It does support a court's deciding
this issue as a categorical matter under the rubric of duty, and a court's articulating general social
norms of responsibility as the basis for this determination.
d. Conflicts with another domain of law. In some cases, negligence-based liability might interfere
with important principles reflected in another area of law. For example, one reason the general

duty of reasonable care stated in 6 is limited to physical harm is that liability for purely economic
harm in commercial cases often raises issues better addressed by contract law or by the tort
of misrepresentation. Similarly, no-duty and limited-duty rules in cases involving owners and
occupiers of land are influenced by issues that are important in property law. See Chapter 9. In
cases alleging physical harm caused by the content of a publication by a media defendant, some
courts have relied on First Amendment concerns in finding that media publishers have no duty or
a limited duty. See also 46, Comment e; 47, Comment l. No-duty and limited-duty rules in tort
help police the boundaries between these various areas of law.
e. Relational limitations. Courts sometimes use the rubric of duty to decide whether an otherwise
negligent actor should be liable to a class of persons in a certain relationship. For example, a
property owner who creates a hazard might be liable to persons lawfully on the property, but not
to a trespasser. Similarly, a home owner who negligently starts a fire might be liable to an adjacent
landowner but not to a firefighter. Thus, an actor may have a duty of reasonable care to some
persons but not to others. See also 48.
f. Institutional competence and administrative difficulties. Sometimes a particular category of
negligence claims would be difficult for courts to adjudicate. Courts may have difficulty gathering
evidence or drawing doctrinal lines necessary to adjudicate certain categories of cases. These
administrative concerns may support adopting a no-duty rule. For example, when a plaintiff claims
that it is negligent merely to engage in the activity of manufacturing a product, the competing
social concerns and affected groups would be appropriate considerations for a court in deciding
to adopt a no-duty rule.
g. Deference to discretionary decisions of another branch of government. Courts employ no-duty
rules to defer to discretionary decisions made by officials from other branches of government,
especially decisions that allocate resources or make other policy judgments. Courts often use the
rubric of duty to hold that it is inappropriate to review these decisions in lawsuits. For example,
courts often hold that police have no duty of reasonable care in deciding how to allocate police
protection throughout a city. This no-duty limitation requires analysis of whether the challenged
action involves a discretionary determination of the sort insulated from review or instead is
a ministerial action that does not require deference. This analysis is similar to that under the
discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. 2680(a).
h. Plaintiff negligence and no-duty determinations. Ordinary language makes it awkward to speak
of a person having a duty of care to himself or herself. Nevertheless, the rules of comparative
responsibility ordinarily diminish the recovery of a plaintiff who has failed to exercise reasonable
care to avoid harm to himself or herself. However, cases arise in which courts hold that a plaintiff's

recovery should not be affected by the plaintiff's own negligent conduct. Just as special problems
of policy may support a no-duty determination for a defendant, similar concerns may support a
no-duty determination for plaintiff negligence. By relieving the plaintiff of an obligation to act
reasonably for self-protection, these rules eliminate the defense of comparative responsibility that
otherwise would diminish the plaintiff's recovery. For example, when a facility undertakes to care
for a person who is mentally ill, and when the person then suffers injury because of his or her own
negligence and the facility's negligence, a court might hold that the facility's undertaking relieves
the patient's own obligation of self-protection. Thus, the person can recover fully, unaffected by
comparative responsibility. See Restatement Third, Torts: Apportionment of Liability 3 and
Comment d.
i. No duty and no negligence as a matter of law. Sometimes reasonable minds cannot differ about
whether an actor exercised reasonable care under 8(b). In such cases, courts take the question of
negligence away from the jury and determine that the party was or was not negligent as a matter
of law. Courts sometimes inaptly express this result in terms of duty. Here, the rubric of duty
inaccurately conveys the impression that the court's decision is separate from and antecedent to
the issue of negligence. In fact, these cases merely reflect the one-sidedness of the facts bearing
on negligence, and they should not be misunderstood as cases involving exemption from or
modification of the ordinary duty of reasonable care.
In other situations, reasonable minds could differ about the application of the negligence standard
to a particular category of recurring facts, but under the rubric of duty courts render a judgment
about that category of cases. See 8(b), Comment c. In conducting its analysis, the court may take
into account factors that might escape the jury's attention in a particular case, such as the overall
social impact of imposing a significant precautionary obligation on a class of actors. These cases
are properly decided as duty or no-duty cases. When no such categorical considerations apply
and reasonable minds could differ about the competing risks and burdens or the foreseeability of
the risks in a specific case, however, courts should not use duty and no-duty determinations to
substitute their evaluation for that of the factfinder.
Thus, in the field of products liability, courts have declared that the warning obligation of
prescription-drug manufacturers ordinarily is limited to the prescribing physician and does not
extend to warning the patient directly. They reason that the physician can best assess the
relevant risk information and determine the appropriate course of treatment. When appropriate, the
physician can inform the patient of means by which the patient may minimize the risk of adverse
side effects. The physician may also, in appropriate situations, consult with the patient as required
by the informed-consent doctrine. Courts have, through this duty limitation, made a categorical
determination that having manufacturers provide safety information to physicians, rather than

to patients, is the appropriate manner for minimizing the costs of adverse side effects. Such a
categorical determination also has the benefit of providing clearer rules of behavior for actors
who may be subject to tort liability and who structure their behavior in response to that potential
liability. Even when such categorical determinations are adopted, exceptions or limitations may
also be appropriate. For example, Restatement Third, Torts: Products Liability 6(d)(2) contains
exceptions to the duty of a drug manufacturer to warn only physicians.
j. The proper role for foreseeability. Foreseeable risk is an element in the determination of
negligence. In order to determine whether appropriate care was exercised, the factfinder must
assess the foreseeable risk at the time of the defendant's alleged negligence. The extent of
foreseeable risk depends on the specific facts of the case and cannot be usefully assessed for a
category of cases; small changes in the facts may make a dramatic change in how much risk is
foreseeable. Thus, for reasons explained in Comment i, courts should leave such determinations
to juries unless no reasonable person could differ on the matter.
A no-duty ruling represents a determination, a purely legal question, that no liability should be
imposed on actors in a category of cases. Such a ruling should be explained and justified based
on articulated policies or principles that justify exempting these actors from liability or modifying
the ordinary duty of reasonable care. These reasons of policy and principle do not depend on the
foreseeability of harm based on the specific facts of a case. They should be articulated directly
without obscuring references to foreseeability.
Courts do appropriately rule that the defendant has not breached a duty of reasonable care when
reasonable minds cannot differ on that question. See Comment i. These determinations are based
on the specific facts of the case, are applicable only to that case, and are appropriately cognizant
of the role of the jury in factual determinations. A lack of foreseeable risk in a specific case may
be a basis for a no-breach determination, but such a ruling is not a no-duty determination. Rather,
it is a determination that no reasonable person could find that the defendant has breached the duty
of reasonable care.
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.
k. Continuing risks of harm. When an actor's conduct creates a risk of harm, this Section requires
that the actor exercise reasonable care in connection with that conduct. However, in some cases an
actor's conduct may create a continuing risk of harm and the question arises whether the actor has

a duty later with regard to that continuing risk. Thus, a person may be exposed to imminent harm
by the conduct of an actor many years before in disposing of a live land mine. The duty imposed by
this Section requires reasonable care in the initial disposal, and failure to exercise reasonable care
in the disposition of the land mine would subject the actor to liability for harms that occur later.
However, the actor may exercise reasonable care at the time by disposing of the mine in a location
where there is no reasonable prospect that others would be subjected to danger. Subsequent events
may, however, result in risks to others. Whether the actor has a duty at that subsequent time when
others are at risk is governed by 39 (Duty Based on Prior Conduct Creating a Risk of Physical
Harm), not by this Section.
l. Relationship with affirmative duties to act. The general duty rule contained in this Section is
conditioned on the actor's having engaged in conduct that creates a risk of physical harm. Section
37 states the obverse of this rule: In the absence of conduct creating a risk of harm to others,
an actor ordinarily has no duty of care to another. Section 37 is contained in Chapter 7, which
addresses the no-duty-to-rescue rule, along with its exceptions.
m. Relationship with intentionally and negligently inflicted emotional harm. Recovery for standalone emotional harm is more circumscribed than when physical harm occurs. These limitations
are often reflected in no- (or limited-) duty rules that limit liability. Chapter 8 of this Restatement
addresses the special rules for recovery of emotional harm and provides for more limited duties
(and liability) when the only harm suffered by the plaintiff is emotional harm than those duties
that exist for physical harm. Thus Chapter 8, rather than this Section, addresses whether a duty
exists and its scope when a plaintiff seeks recovery for pure emotional harm. If, however, a duty
exists under Chapter 8, the remainder of this Restatement is applicable to such claims.
n. Relationship with duties of landowners and possessors. As with stand-alone emotional harm,
courts have employed different duty rules for land possessors for harm caused to those on the land.
Chapter 9 of this Restatement contains the duties owed by land possessors in such circumstances.
Once a duty pursuant to Chapter 9 exists, the remainder of this Restatement is applicable to such
claims.
o. Conduct creating risk. An actor's conduct creates a risk when the actor's conduct or course
of conduct results in greater risk to another than the other would have faced absent the conduct.
Conduct may create risk by exposing another to natural hazards, as, for example, when a pilot of
an airplane flies the plane into an area of thunderstorms. Conduct may also create risk by exposing
another to the improper conduct of third parties. See 19; see also 37, Comment c.

Reporters' Note
Comment a. The proper role for duty.Dean Prosser reports that the concept of duty did not
develop until negligence emerged as a separate theory of liability in the 19th century and then was
employed in order to confine the scope of liability. William Prosser, Palsgraf Revisited, 52 MICH.
L. REV. 1, 12-13 (1953). The concept of duty remains confined to claims based on negligence. An
early acknowledgment of the ordinary duty to exercise reasonable care was provided in Heaven
v. Pender, (1883) 11 Q.B.D. 503, 509:
The proposition which these recognized cases suggest, and which
is, therefore, to be deduced from them, is that whenever one person
is by circumstances placed in such a position with regard to another
that everyone of ordinary sense who did think would at once
recognize that if he did not use ordinary care and skill in his own
conduct with regard to those circumstances he would cause danger
of injury to the person or property of the other, a duty arises to use
ordinary care and skill to avoid such danger.
Edward White plants the principle expressed in 7(a) deep in the roots of tort history with his
observation that the development of a duty of reasonable care owed to all was critical to the
emergence of tort as a discrete subject of law in the 19th century. See G. EDWARD WHITE,
TORT LAW IN AMERICA 18 (expanded ed. 2003). White relies on the well-known dictum by
Holmes that tort law involves duties of all the world to all the world. Oliver Wendell Holmes,
Jr., The Theory of Torts, 7 AM. L. REV. 652, 662 (1873) (article has no author attribution but
Holmes is widely credited as the author).
For more modern recognition of the general rule of negligence liabilityalong with the
acknowledgment that the judicial power to modify this general rule is reserved for very limited
situationssee Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir. 1995) (Calabresi, J.)
(applying New York law); see also Restatement Second, Torts 302, Comment a (In general,
anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable
man to protect them against an unreasonable risk of harm to them arising out of the act.). For
affirmation of the general duty requiring persons to exercise ordinary care to prevent injury,
with departures permitted in particular cases based largely on public-policy considerations, see
Vazquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007) (applying Puerto
Rico law) (In most cases the duty is defined by the general rule that one must act as would a
prudent and reasonable person under the circumstances.); McMellon v. United States, 338 F.3d

287, 298 (4th Cir. 2003) (Broadly speaking, the general maritime law imposes a duty to exercise
reasonable or ordinary care under the circumstances.), rev'd en banc on rehearing and vacated,
387 F.3d 329 (4th Cir. 2004); River Prod. Co. v. Baker Hughes Prod. Tools, Inc., 98 F.3d 857, 859
(5th Cir. 1996) (applying Mississippi law) (Whenever a person does some act, the law imposes
a duty upon that person to take reasonable care in performing that act.); Hamilton v. Cannon, 80
F.3d 1525, 1529 & n.4 (11th Cir. 1996) (federal civil-rights law); Taylor v. Smith, 892 So.2d 887,
893 (Ala. 2004) ([E]very person owes every other person a duty imposed by law to be careful not
to hurt him. (quoting Se. Greyhound Lines v. Callahan, 13 So.2d 660, 663 (Ala. 1943))); Div.
of Corr. v. Neakok, 721 P.2d 1121, 1125-1126 (Alaska 1986) (The general rule of negligence
law is that a defendant owes a duty of care to all persons who are foreseeably endangered by his
conduct, with respect to all risks which make the conduct unreasonably dangerous. (quoting
Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974))); Zelig v. County of Los
Angeles, 45 P.3d 1171, 1182 (Cal. 2002); Vasquez v. Residential Invs., Inc., 12 Cal.Rptr.3d 846,
852 (Ct. App. 2004) ([E]very [negligence] case is governed by the rule of general application
that all persons are required to use ordinary care to prevent others from being injured as the result
of their conduct. (quoting Weirum v. RKO Gen., Inc., 539 P.2d 36 (Cal. 1975))); Gazo v. City of
Stamford, 765 A.2d 505, 509 (Conn. 2001) (stating the general rule that every person has a duty to
use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by
his negligent conduct, whether that conduct consists of acts of commission or omission); United
States v. Stevens, 994 So.2d 1062 (Fla. 2008); Union Park Mem'l Chapel v. Hutt, 670 So.2d 64,
67 (Fla. 1996) (In every situation where a man undertakes to act, he is under an implied legal
obligation or duty to act with reasonable care, to the end that the person or property of others may
not be injured. (quoting Banfield v. Addington, 140 So. 893, 896 (Fla. 1932))); Bradley Ctr., Inc.
v. Wessner, 296 S.E.2d 693 (Ga. 1982); Turpen v. Granieri, 985 P.2d 669 (Idaho 1999) (Every
person, in the conduct of his business, has a duty to exercise ordinary care to prevent unreasonable,
foreseeable risks of harm to others. (quoting Sharp v. W.H. Moore, Inc., 796 P.2d 506, 509
(Idaho 1990))); Karas v. Strevell, 884 N.E.2d 122 (Ill. 2008) (In general, every person owes a duty
of ordinary care to guard against injuries to others.); Davis v. Witt, 851 So.2d 1119, 1128 (La.
2003) (Generally, there is an almost universal legal duty on the part of a defendant in a negligence
case to conform to the standard of conduct of a reasonable person in like circumstances.); Jupin
v. Kask, 849 N.E.2d 829, 835 (Mass. 2006) ([a]s a general principle of tort law, every actor has a
duty to exercise reasonable care to avoid physical harm to others. (quoting Remy v. MacDonald,
801 N.E.2d 260, 262-263 (Mass. 2004))); Bundy v. Holmquist, 669 N.W.2d 627, 632 (Minn. Ct.
App. 2003) ([e]very person in the conduct of his affairs is under a legal duty to act with care and
forethought; and, if injury results to another from his failure so to do, he may be held accountable
in an action at law. (quoting Roadman v. C.E. Johnson Motor Sales, 297 N.W. 166, 169 (Minn.
1941))); Fisher v. Swift Transp. Co., 181 P.3d 601 (Mont. 2008) (At the most basic level, we all
share the common law duty to exercise the level of care that a reasonable and prudent person would

under the same circumstances.); Dieter v. Hand, 333 N.W.2d 772, 774 (Neb. 1983) (commonlaw duty of every person to use due care so that he does not act or use that which he controls so as
to negligently injure another person); Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H.
2003); Hart v. Ivey, 420 S.E.2d 174, 178 (N.C. 1992) ([T]he law imposes upon every person who
enters upon an active course of conduct the positive duty to exercise ordinary care to protect others
from harm, and calls a violation of that duty negligence. (quoting Council v. Dickerson's, Inc., 64
S.E.2d 551, 553 (N.C. 1951))); Wofford v. E. State Hosp., 795 P.2d 516, 519 (Okla. 1990) (As
a general rule a defendant owes a duty of care to all persons who are foreseeably endangered by
his conduct with respect to all risks which make the conduct unreasonably dangerous. (quoting
Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976))); Fazzolari v. Portland Sch.
Dist. No. 1J, 734 P.2d 1326, 1336 (Or. 1987) (In short, unless the parties invoke a status, a
relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty,
the issue of liability for harm actually resulting from defendant's conduct properly depends on
whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind
of harm that befell the plaintiff.); Zanine v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super. Ct.
1985) (identifying the general duty imposed on all persons not to place others at risk of harm
through their actions); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (As
a general rule, persons have a duty to others to refrain from engaging in affirmative acts that a
reasonable person should recognize as involving an unreasonable risk of causing an invasion of an
interest of another or acts which involve[ ] an unreasonable risk of harm to another. ); Rochon
v. Saberhagen Holdings, Inc., 140 Wash.App. 1008 (Wash. Ct. App. 2007) (In general, anyone
who does an affirmative act is under a duty to others to exercise the care of a reasonable man to
protect them against an unreasonable risk of harm to them arising out of the act) (emphasis in
original); Miller v. Whitworth, 455 S.E.2d 821 (W. Va. 1995); Smaxwell v. Bayard, 682 N.W.2d
923 (Wis. 2004); Coffey v. City of Milwaukee, 247 N.W.2d 132, 138 (Wis. 1976); Andersen v.
Two Dot Ranch, Inc., 49 P.3d 1011, 1014 (Wyo. 2002) (the common law of negligence creates
a general duty to exercise the degree of care required of a reasonable person in light of all the
circumstances. (quoting Hill v. Park County, 856 P.2d 456, 459 (Wyo. 1993))); see also DAN
B. DOBBS, THE LAW OF TORTS 227, at 578 (2000) (Among strangers the default rule
is that everyone owes a duty of reasonable care to others to avoid physical harms.) (footnote
omitted); 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER,
JAMES AND GRAY ON TORTS 18.6, at 862 (3d ed. 2007) (By 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.); Fleming James, Jr., Scope of
Duty in Negligence Cases, 47 NW. U. L. REV. 778, 800 (1953); Oliver Wendell Holmes, Jr., The
Theory of Torts, 7 AM. L. REV. 652, 662 (1873) (explaining the emergence of negligence as the
default standard of care owed by all the world to all the world) (Holmes is not identified as the
author, but is widely credited as having been the author); Jean Elting Rowe & Theodore Silver,
10

The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance
and Misfeasance from the Fifteenth Through the Twentieth Centuries, 33 DUQ. L. REV. 807,
850-851 (1995) (unless the plaintiff would have suffered the harm in the absence of defendant's
existence, a duty of reasonable care exists). But see Williams v. Cingular Wireless, 809 N.E.2d
473, 476 (Ind. Ct. App. 2004) (A duty of reasonable care is not, of course, owed to the world at
large, but arises out of a relationship between the parties. (quoting Webb v. Jarvis, 575 N.E.2d
992, 997 (Ind. 1991))).
According to Fazzolari v. Portland School District No. 1J, 734 P.2d 1326 (Or. 1987) (Linde, J.),
the doctrine of duty is not a prerequisite for liability in ordinary cases; rather, no duty is a
defensive argument that serves to limit liability in unusual cases. The position taken in this Section
is consistent with the approach taken to the duty issue in almost every torts treatise and casebook.
Those treatises and casebooks typically begin their sections on accidental harm with long chapters
devoted to the negligence standard of liability. In a later chapter, they then turn to the limited
number of situations to which the duty doctrine serves to limit or qualify what would otherwise
be the broad scope of negligence liability. E.g., DAN B. DOBBS, THE LAW OF TORTS
(2000); RICHARD ALLEN EPSTEIN, CASES AND MATERIALS ON TORTS (8th ed. 2004);
3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER, JAMES,
AND GRAY ON TORTS (3d ed. 2007); JAMES A. HENDERSON, JR. ET AL., THE TORTS
PROCESS (7th ed. 2007); ROBERT E. KEETON ET AL., TORT AND ACCIDENT LAW
(4th ed. 2004); MARC A. FRANKLIN, ROBERT L. RABIN & MICHAEL D. GREEN, TORT
LAW AND ALTERNATIVES (8th ed. 2006); VICTOR E. SCHWARTZ ET AL., PROSSER,
WADE AND SCHWARTZ'S TORTS (11th ed. 2005); see also ALLEN M. LINDEN & BRUCE
FELDTHUSEN, CANADIAN TORT LAW 285 (8th ed. 2006) (The duty concept is a control
device that enables courts to check the propensity of juries to award damages in situations where
matters of legal policy would dictate otherwise. (footnote omitted)).
Dean Harry Wellington makes the subtle distinction between principle and policy. See Harry
H. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on
Adjudication, 83 YALE L.J. 221, 222-224 (1973). The latter constitutes an instrumental
justification for a legal rule, while the former is a moral reason in support of a legal rule. In
some contexts, such as the retroactivity issue addressed by Wellington, the distinction may be
significant. The use of principle or policy in this Section communicates that the sum total of
recognized legal rationales is available in determining whether it is appropriate to recognize an
exception to the general rule of a duty of ordinary care.
Comment b. Procedural aspects of duty determination.Placing the burden of raising the issue of
duty on the defendant if the defendant claims some duty other than that of reasonable care makes
11

good sense and is consistent with current pleading burdens. Although the existence of a duty is,
in a sense, a necessary element of the plaintiff's case, when a plaintiff pleads that defendant's
negligence caused physical harm, the defendant owes plaintiff a duty of reasonable care in the vast
majority of cases. Under federal pleading rules, a plaintiff claiming negligence is not obliged to
include an allegation that the defendant had a duty of reasonable care. See FED. R. CIV. P. Form
9. Moreover, such an allegation would add nothing of value to the complaint; the allegation of
negligence implies the existence of a breach of a duty of reasonable care. Thus, if the existence of
such a duty is disputed and requires resolution, defendants should have the obligation of raising the
matter in those few cases in which there is a genuine dispute about duty. In that sense, the existence
of a duty of reasonable care is analogous to capacity to sue or compliance with conditions precedent
in a contract, which are presumed to exist, and the burden of pleading their absence is placed on
the defendant. See FED. R. CIV. P. 9(a); see also 2 GEORGE E. DIX ET AL., MCCORMICK
ON EVIDENCE 337, at 476 n.16 (6th ed. 2006) (explaining that in federal courts a defendant is
required to plead the nonoccurrence of a particular condition precedent in a contract, even though
the defendant may not have the burden of proof regarding that issue); 5A CHARLES ALAN
WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE 1292, at 16-17
(3d ed. 1998) (identifying the goal of simplifying the pleadings as a ground for allocating the
burden of pleading).
For a case like Illustration 1, in which the court held that the jury would have to decide the disputed
facts that bore on whether a duty was owed, see Bourgonje v. Machev, 841 N.E.2d 96, 106 (Ill.
App. Ct. 2005).
Comment c. Conflicts with social norms about responsibility.Among the cases imposing liability
on commercial dispensers of liquor are Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983); Mason v.
Roberts, 294 N.E.2d 884 (Ohio 1973); Sorensen v. Jarvis, 350 N.W.2d 108 (Wis. 1984).
Among the cases denying the liability of a social host are Settlemyer v. Wilmington Veterans
Post No. 49 Am. Legion Inc., 464 N.E.2d 521 (Ohio 1984); Ferreira v. Strack, 652 A.2d 965 (R.I.
1995); Overbaugh v. McCutcheon, 396 S.E.2d 153 (W. Va. 1990).
One interesting case that relies on a duty analysis to limit a potential finding of negligence is
Kentucky Fried Chicken of California, Inc. v. Superior Court, 927 P.2d 1260 (Cal. 1997). This
case concerned whether a shopkeeper can be held liable for refusing to accede to an armed robber's
request that the shopkeeper turn over his money; because the shopkeeper refused to accede,
an instance of violence occurred that injured a customer. The court assumed that a jury could
reasonably find that the store's refusal created an unreasonable risk. Still, the court perceived that
imposing liability would violate public policy by interfering with the basic right to defend one's
12

property. Id. at 1270. The court therefore affirmed a duty limitation with respect to the defendant's
potential liability. Another interesting case is Doe v. Johnson, 817 F.Supp. 1382 (W.D. Mich.
1993), in which the court ruled that a defendant entering into a sexual episode has no duty
to reveal to his companion his prior record of high-risk sexual activity. In reaching this duty
determination, the court relied in part on the problems of line-drawing that a contrary conclusion
would entail, but also on the need to protect basic privacy values. Both Kentucky Fried Chicken
and Doe make clear that no-duty determinations can be based on moral principles as well as on
utilitarian or consequentialist policies.
For a court's review of public-policy considerations in the course of reaching the conclusion that
negligence law does not impose a duty on a manufacturer to retrofit products so as to incorporate
safety devices developed after the time of sale, see Tabieros v. Clark Equip. Co., 944 P.2d 1279
(Haw. 1997).
Comment d. Conflicts with another domain of law.For judicial discussion of the extent of liability
of the used-car dealer, see Ryals v. Billy Poppell, Inc., 386 S.E.2d 513 (Ga. Ct. App. 1989)
(no duty to inspect); Mugavero v. A-1 Auto Sales, Inc., 944 P.2d 151 (Idaho Ct. App. 1997)
(no duty to inspect or warn); Rahn v. Gerdts, 455 N.E.2d 807 (Ill. App. Ct. 1983) (no duty to
inspect); Kopischke v. First Cont'l Corp., 610 P.2d 668 (Mont. 1980) (duty to inspect and to repair);
Realmuto v. Straub Motors, Inc., 322 A.2d 440, 444 n.3 (N.J. 1974) (duty to inspect and to warn).
On the liability of the auto service station to third parties, see Rager v. Superior Coach Sales &
Serv. of Ariz., 526 P.2d 1056 (Ariz. 1974); Harper v. Guar. Auto Stores, 533 N.E.2d 1258 (Ind.
Ct. App. 1989); Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318 (Okla. 1996).
For other cases that have dealt with duty issues raised by contractual allocations, see Lowenschuss
v. S. Cal. Gas Co., 14 Cal.Rptr.2d 59 (Ct. App. 1992); Eaves Brooks Costume Co. v. Y.B.H. Realty
Corp., 556 N.E.2d 1093 (N.Y. 1990).
Courts display a significant tendency to protect media defendants who publish material, including
written publications and entertainment (music, video games, and movies), from liability for
physical harm either through no- or limited-duty rulings based on First Amendment concerns or,
more directly, by holding that the First Amendment provides a defense to such claims unless the
communication rises to the level of incitement required by Brandenburg v. Ohio, 395 U.S. 444,
447 (1969). See Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992);
Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir. 1991); Sanders v. Acclaim Entm't, Inc.,
188 F.Supp.2d 1264 (D. Colo. 2002); Brandt v. Weather Channel, Inc., 42 F.Supp.2d 1344 (S.D.
Fla.) (declining, based on First Amendment concerns, to impose duty on weather forecasters in
13

suit in which plaintiff's decedent drowned after adverse weather event that was not forecast), aff'd,
204 F.3d 1123 (11th Cir. 1999); Jones v. J.B. Lippincott Co., 694 F.Supp. 1216 (D. Md. 1988);
Lewin v. McCreight, 655 F.Supp. 282 (E.D. Mich. 1987) (publisher of how-to book had no duty
to warn about content of book not written by publisher); Birmingham v. Fodor's Travel Pubs.,
Inc., 833 P.2d 70 (Haw. 1992); Alm v. Van Nostrand Reinhold Co., 480 N.E.2d 1263, 1267 (Ill.
App. Ct. 1985); Walter v. Bauer, 439 N.Y.S.2d 821 (Sup. Ct. 1981); Widdoss v. Huffman, 62
Pa.D.&C.4th 251 (2003) (distributor and exhibitor of movie that allegedly caused copycat crime
protected by First Amendment from tort liability); Orozco v. Dallas Morning News, Inc., 975
S.W.2d 392 (Tex. App. 1998); Way v. Boy Scouts of Am., 856 S.W.2d 230 (Tex. App. 1993); see
also Pahler v. Slayer, 29 Media L. Rep. (BNA) 2627 (Cal. Super. Ct. 2001) (defendants involved
in production and distribution of recorded music protected by First Amendment from liability for
murder of plaintiffs' daughter); Byers v. Edmondson, 826 So.2d 551 (La. Ct. App. 2002) (movie,
Natural Born Killers, protected by First Amendment and hence producer, director, and distributor
of movie could not be held liable for copycat murder); cf. James v. Meow Media, Inc., 300 F.3d
683 (6th Cir. 2002); Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004) (First
Amendment barred parishioner's claim against priest for various negligence claims arising out
of meeting between parishioner-plaintiff, husband, and priest that priest allegedly surreptitiously
taped to assist husband in obtaining divorce). But see Saloomey v. Jeppesen & Co., 707 F.2d
671 (2d Cir. 1983) (publisher of aviation map subject to strict products liability); Rice v. Paladin
Enters., 128 F.3d 233 (4th Cir. 1997) (publisher of book on how to commit a contract murder
found to have aided and abetted in the criminal acts that resulted in decedents' deaths); Wilson
v. Paladin Enters., 186 F.Supp.2d 1140 (D. Or. 2001); Weirum v. RKO Gen., Inc., 539 P.2d 36
(Cal. 1975) (broadcaster subject to ordinary tort duty of reasonable care in sponsoring a contest
for listeners to locate radio personality who was driving around city); cf. Risenhoover v. England,
936 F.Supp. 392 (W.D. Tex. 1996) (newspaper subject to ordinary duty of reasonable care for
revealing date of law-enforcement raid to subject of raid). For an interesting analysis of the tort and
First Amendment issues raised in cases in which a media defendant is sued for causing personal
injury, see David A. Anderson, Incitement and Tort Law, 37 WAKE FOREST L. REV. 957 (2002).
See generally Clay Calvert, Media Liability for Violent Conduct: One Year Later, 23 LOY. L.A.
ENT. L. REV. 247 (2003); Lars Noah, Authors, Publishers, and Products Liability: Remedies
for Defective Information in Books, 77 OR. L. REV. 1195 (1998); Gerald R. Smith, Note, Media
Liability for Physical Injury Resulting from the Negligent Use of Words, 72 MINN. L. REV. 1193
(1988); Daniel McNeel Lane, Jr., Note, Publisher Liability for Material that Invites Reliance, 66
TEX. L. REV. 1155 (1988).
The interplay between the First Amendment and tort liability arises also in the emotional-harm
arena. See 46, Comment e, and 47, Comment l; see also Wilson v. Midway Games, Inc., 198
F.Supp.2d 167 (D. Conn. 2002) (finding that claims for negligent and intentional infliction of
14

emotional distress brought by mother of murdered teenager are precluded by First Amendment
in suit against video-game manufacturer whose game allegedly encouraged addicted adolescentplayer to stab another; images and messages in video game did not rise to level required by
Brandenburg to overcome First Amendment as bar to mother's claims).
Comment e. Relational limitations.For the traditional rules on landowner liability, see Restatement
Second, Torts 328E-387. The modern challenge to these traditional rules was initiated in
Rowland v. Christian, 443 P.2d 561 (Cal. 1968). For a recent review of the case law, see Nelson
v. Freeland, 507 S.E.2d 882 (N.C. 1998).
The fireman's rule had its origins in landowner-liability law, but has since extended to actors
other than landowners. The rule holds that a professional firefighter cannot recover from the actor
who negligently initiates the fire. At times, the rule is justified in terms of assumption of risk; as
so justified, the rule does not come within this Section. At other times, however, the rule is based
on a considerable variety of public-policy considerations that are independent of assumption of
risk as such. E.g., Krause v. U.S. Truck Co., 787 S.W.2d 708 (Mo. 1990). As so explained, the
rule is an example of the no-duty reasoning referred to in this Section.
A number of courts have decided that mothers owe no duty of care to their unborn fetuses because
of the infringement on autonomy and personal choice that such a duty would impose. E.g., Remy
v. MacDonald, 801 N.E.2d 260 (Mass. 2004); Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988);
Chenault v. Huie, 989 S.W.2d 474, 476 (Tex. App. 1999). But see Nat'l Cas. Co. v. N. Trust
Bank, 807 So.2d 86, 87 (Fla. Dist. Ct. App. 2001) (allowing child to make claim against mother
for prenatal injury but limiting such claims to automobile accidents and the limits of liability
insurance). These courts bar such claims for prenatal injuries against the mother while permitting
claims against other tortfeasors.
Several courts limit the liability of physicians to third parties through no-duty rulings. See, e.g.,
Dehn v. Edgecombe, 834 A.2d 146 (Md. Ct. Spec. App. 2003) (physician duty is based on patientphysician relation and only owed to patient, not to spouse of patient who became pregnant due to
failed vasectomy), aff'd, 865 A.2d 603 (Md. 2005). In addition, cases arise in which the physician's
conduct played no role in creating the risk of harm but the physician's treatment of the patient
failed to ameliorate the risk of harm to third parties. The issue of affirmative duties of physicians to
third parties is addressed in 41, Comment h. Among courts employing no-duty rules, a common
concern is the extent of liability to which physicians might be exposed. Indeed, in many of these
cases, the physician has breached a duty to the patient by failing to warn the patient of dangers, and
the physician plainly would be subject to liability to the patient if the patient suffered harm. See
McKenzie v. Haw. Permanente Med. Group, Inc., 47 P.3d 1209 (Haw. 2002) (recognizing liability
15

of physician to patient for failing to explain sedative side effects of prescription drugs). Another
concern that courts have expressed is the conflict such a duty to third parties might create between
the physician's obligations to the patient and the physician's desire to avoid any risk of liability.
See McKenzie v. Haw. Permanente Med. Group, Inc., 47 P.3d 1209 (Haw. 2002); Webb v. Jarvis,
575 N.E.2d 992, 997 (Ind. 1991); Kolbe v. State, 661 N.W.2d 142 (Iowa 2003); Burroughs v.
Magee, 118 S.W.3d 323, 333-335 (Tenn. 2003); Praesel v. Johnson, 967 S.W.2d 391, 396 (Tex.
1998). While this concern may be valid in some instances when the alleged negligence implicates
the choice of medication, it is much less valid when the plaintiff claims that the physician failed to
tell the patient of the sedating effect of a drug, a risk to which the patient is equally exposed. See
Lester v. Hall, 970 P.2d 590 (N.M. 1998). Even in the choice of medication or other treatment, a
physician may make a choice that is both improper for the patient and poses risks to others. See
Watkins v. United States, 589 F.2d 214 (5th Cir. 1979) (physician prescribed valium for patient
without ascertaining that patient also suffered from depression; valium is inappropriate medication
for persons with depression). In Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003), the court
resolved the tension between physician loyalty to patient and risks to third parties by holding that
a physician has a duty to third parties to warn a patient about the effect of prescribed medications
on the patient's ability to engage in dangerous activities, such as driving, but the physician owes
no duty to third parties in deciding on the appropriate treatment for the patient. See also Hardee v.
Bio-Medical Applications of S.C., Inc., 636 S.E.2d 629 (S.C. 2006) (health-care provider aware
that treatment may have detrimental effects on a patient's capacities owes a duty to reasonably
foreseeable third parties to provide appropriate warning to patient).
The concern about conflicts obscures a difficult, yet important issue. When treatment of a patient
poses risks to others, should the health-care provider take into account those risks to others in
determining the appropriate course of action? Courts have not explicitly addressed that matter,
but implicit in the denial of a duty to third parties and protection of provider allegiance to patient
is a denial that risks to third parties should be taken into account. The closest a case has come
to confronting this conundrum is McKenzie v. Hawaii Permanente Medical Group, Inc., 47 P.3d
1209 (Haw. 2002), in which the court concluded that judgments about efficacy, cost, and risks in
prescribing medications should be left to physicians, insurers, and others involved in healthcare
rather than being addressed by judges and juries in suits by third parties. See also Lester v. Hall,
970 P.2d 590, 593 (N.M. 1998) ([D]octors should not be asked to weigh notions of liability in
their already complex universe of patient care.). Yet that position is quite problematic. If two
vaccines, equally effective and of equal risk to the patient exist, but one poses serious risks to third
parties and the other is entirely benign, the physician who prescribes the former should be held
liable to a third party harmed by the vaccine, as should the manufacturer who sold the vaccine.
Similarly, the proposition that risks to third parties should be ignored is difficult to abide when the
risks to third parties substantially outweigh the benefits to the patient. A doctor may be obliged to
16

quarantine an unwilling, but contagious patient who poses a risk of contributing to an epidemic.
See Davis v. Rodman, 227 S.W. 612 (Ark. 1921). The patient-at-all-cost view may not be what
courts mean to endorse with their no-duty rulings. Rather, the concern may be that physicians
would be overdeterredconcerned about erroneous legal judgments or even the considerable costs
of defending a suit that is ultimately defeatedin their prescribing and other treatment practices.
A case in which the court appeared to apply ordinary duty rules to a physician whose treatment
of a patient created a risk of harm to others is Taylor v. Smith, 892 So.2d 887, 893 (Ala. 2004)
(observing every person owes every other person a duty imposed by law to be careful not to hurt
him and citing other cases in which courts imposed a duty on physicians with regard to risks
posed to third parties arising from treatment of a patient). Curiously, at the end of its opinion, the
Taylor court observed that the doctor could only be found liable to the third party if the doctor's
treatment of his patient breached the standard of care owed to the patient. For courts that have
inquired into whether a special relationship exists that thereby imposes a duty, even though the
physician's conduct in treating the patient created a risk of harm to others, see Shortnacy v. N.
Atlanta Internal Med., P.C., 556 S.E.2d 209 (Ga. Ct. App. 2001); Kirk v. Michael Reese Hosp.
& Med. Ctr., 513 N.E.2d 387 (Ill. 1987) (rejecting a special relationship because physician who
prescribed a drug that decreased mental and physical acuity did not have control over patient);
Welke v. Kuzilla, 375 N.W.2d 403 (Mich. Ct. App. 1985).
Comment f. Institutional competence and administrative difficulties.The difficulty of line-drawing
dominates many of the recent judicial opinions that have rejected the liability of the social
host for dispensing liquor to intoxicated guests. E.g., Burkhart v. Harrod, 755 P.2d 759 (Wash.
1988); Graff v. Beard, 858 S.W.2d 918 (Tex. 1993). In cases involving liability for recreational
injuries, the problem of drawing the line between negligent and nonnegligent contacts has helped
persuade courts that liability should be confined to instances of the defendant's recklessness. E.g.,
Ritchie-Gamester v. City of Berkley, 597 N.W.2d 517 (Mich. 1999) (ice skating at ice arena).
Administrative concerns weighed heavily in the New York Court of Appeals decision that handgun
manufacturers do not have a duty of reasonable care in their marketing and distributing of their
handguns. See Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001). In the educationalmalpractice area, courts have concluded that educators have no duty of care to their students,
often because of the administrative difficulties of adjudicating such claims. Problems exist both in
sorting out conduct that is innovative or nontraditional as opposed to negligent and in determining
the factual cause of a student's educational deficiency. See Peter W. v. S.F. Unified Sch. Dist., 131
Cal.Rptr. 854 (Ct. App. 1976); Donohue v. Copiague Union Free Sch. Dist., 391 N.E.2d 1352,
1355 (N.Y. 1979) (Wachtler, J., concurring).
17

Comment g. Deference to discretionary decisions of another branch of government.The publicduty doctrine is often explained as preventing government tort liability for obligations owed
generally to the public, such as providing fire or police protection. Only when the duty is narrowed
to the injured victim or a prescribed class of persons does a tort duty exist. For a good explanation of
the reasons for this pocket of no duty, see Tipton v. Town of Tabor, 567 N.W.2d 351, 356-357 (S.D.
1997). For other courts employing the public-duty doctrine, see Castellani v. Del. State Police,
751 A.2d 934, 938-940 (Del. Super. Ct. 1999) (delay in responding to report of malfunctioning
traffic signal); Shepard v. Bradford, 721 So.2d 1049, 1052-1053 (La. Ct. App. 1998) (security
at public park); White v. Beasley, 552 N.W.2d 1, 3-7 (Mich. 1996) (failure of police officer to
investigate adequately circumstances behind 911 call); Stone v. N.C. Dep't of Labor, 495 S.E.2d
711, 715-717 (N.C. 1998) (failure of governmental agency to inspect workplace for safety); Catone
v. Medberry, 555 A.2d 328, 330-334 (R.I. 1989) (public-duty doctrine unavailable for negligence
of government employee in driving an automobile); Ezell v. Cockrell, 902 S.W.2d 394, 397-399
(Tenn. 1995) (failure to arrest drunk driver who subsequently injured plaintiff).
Comment h. Plaintiff negligence and no-duty determinations.For courts using a no-duty rule for
plaintiffs alleged to have been contributorily negligent, see Capitano v. CSX Transp., Inc., 698
So.2d 652 (Fla. Dist. Ct. App. 1997); Merida v. Cardinal, 749 N.E.2d 605 (Ind. Ct. App. 2001);
Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000);
Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584 (Tex. 1999); Christensen v. Royal Sch. Dist. No.
160, 124 P.3d 283 (Wash. 2005). For further instances of courts employing no-duty rules for a
victim's negligence and an effort to identify the principles and policies at work in such rulings, see
Ellen M. Bublick, Comparative Fault to the Limits, 56 VAND. L. REV. 977 (2003). However,
some of the no-duty (or no-duty like) rules applicable to plaintiff fault that developed when
contributory fault was a complete bar to recovery may no longer be appropriate with comparative
responsibility the applicable rule. See, e.g., 32, Comment d (rescuers); Restatement Third, Torts:
Apportionment of Liability 3.
For a cogent explanation of the reason for the awkwardness in characterizing victim negligence
as breach of duty, see Kenneth W. Simons, Contributory Negligence: Conceptual and Normative
Issues, inPHILOSOPHICAL FOUNDATIONS OF TORT LAW 461, 467-468 (David G. Owen
ed., 1995); see also DAN B. DOBBS, THE LAW OF TORTS 199, at 495 (2000); Kenneth
W. Simons, The Puzzling Doctrine of Contributory Negligence, 16 CARDOZO L. REV. 1693,
1705-1709 (1995).
For recent cases indicating that the mentally ill patient is under no duty of self-protection with
respect to a caretaker, see Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809
(D. Conn. 1997); Cowan v. Doering, 545 A.2d 159 (N.J. 1988). Cases declining fully to accept
18

this no-duty idea include Hobart v. Shin, 705 N.E.2d 907 (Ill. 1998) (suicide victim's fault
diminishes family's wrongful-death claim against therapist); Jankee v. Clark County, 612 N.W.2d
297 (Wis. 2000) (primary fault of patient injured while escaping from psychiatric hospital bars
claim against hospital). For discussion, see Sarah Light, Note, Rejecting the Logic of Confinement:
Care Relationships and the Mentally Disabled Under Tort Law, 109 YALE L.J. 381 (1999).
When a rape victim sues a hotel or apartment owner alleging negligence in the failure to provide
adequate security against the prospect of violent crime, some courts have held that the victim's
unreasonable conduct in exposing herself to the rape (for example, by letting a stranger into her
room at night) operates to reduce her recovery under comparative responsibility. E.g., Wassell
v. Adams, 865 F.2d 849 (7th Cir. 1989) (applying Illinois law); Carmen P. v. PS & S Realty
Corp., 687 N.Y.S.2d 96 (App. Div. 1999). It has been argued that courts should instead hold
that plaintiffs have no duty to protect themselves against the risk of rape in suits against
defendants who negligently failed to protect the victim from the rape. Ellen M. Bublick, Citizen
No-Duty Rules: Rape Victims and Comparative Fault, 99 COLUM. L. REV. 1413 (1999); see
also Hutchison v. Luddy, 763 A.2d 826 (Pa. Super. Ct. 2000) (relying on no duty to conclude
that minor victim's comparative negligence could not be used to reduce recovery against church
and bishop for negligent supervision of priest who sexually abused plaintiff). Of course, the
victim's carelessness would not prevent her from securing a full judgment against the rapist
himself. In those jurisdictions that permit apportionment of liability among intentional and
negligent tortfeasors, a no-duty rule would be the basis for eliminating a victim's carelessness from
consideration in a suit against the rapist. See Restatement Third, Torts: Apportionment of Liability
1, Reporters' Note to Comment c.
Comment i. No duty and no negligence as a matter of law.For explicit criticism of the use of
the language of duty when all that is meant is the application of the negligence standard to a
particular factual situation, see Coburn v. City of Tucson, 691 P.2d 1078 (Ariz. 1984); KENNETH
S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 233 (3d ed. 2007); DAVID
M. ROBERTSON ET AL., CASES AND MATERIALS ON TORTS 296-297 (3d ed. 2004); see
also Theodore R. Boehm, A Tangled WebbReexamining the Role of Duty in Indiana Negligence
Actions, 37 IND. L. REV. 1, 4 (2003) (observing that many Indiana cases employ no duty instead
of more appropriately ruling that there is no negligence as a matter of law). Courts also use noduty when the reason that a defendant is not liable is because there is insufficient evidence of
causation. See, e.g., McGuire v. New Orleans City Park Improvement Ass'n, 835 So.2d 416 (La.
2003) (golf-course operator had no duty to warn jogger of obvious danger with which jogger
was familiar); see also Stagl v. Delta Airlines, Inc., 52 F.3d 463, 470 (2d Cir. 1995) (This, of
course, raises the age-old debate as to when it is appropriate for a court to decide the question of
a defendant's due care as a matter of law, rather than allowing a jury to resolve it as an issue of
19

fact.); Burke v. Spartanics Ltd., 252 F.3d 131 (2d Cir. 2001) (applying New York law) (explaining
and criticizing misuse of no duty when plaintiff was aware of a risk that defendant is charged
with failing to warn about). In fact, these misuses are unfortunately common in judicial opinions.
See Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (Under New
York law, the question of the existence of a duty is a question of law that is to be answered by
the Court of Appeals in broad, categorical fashion. ). The confusion that the terminology of
duty frequently brings about provides another reason for recommending that this terminology be
deployed only in those particular cases where the terminology has a distinct role to play. For a
court that resisted use of no duty and instead forthrightly held that, on the facts presented by the
plaintiffs, defendants had, as a matter of law, not been negligent because no jury could have found
them to have acted unreasonably, see Di Benedetto v. Pan Am World Serv., Inc., 359 F.3d 627
(2d Cir. 2004) (applying New York law).
The Illinois Supreme Court resisted an effort to collapse the question of breach into duty and
explained:
[T]o the extent defendants suggest we could create a rule of law narrower than the
exemption discussed above to absolve them of liability, they are actually requesting
that we determine, as a matter of law, that they did not breach their duty of care.
It is inadvisable for courts to conflate the concepts of duty and breach in this
manner. Courts could, after all, state an infinite number of duties if they spoke
in highly particular terms, and while particularized statements of duty may be
comprehensible, they use the term duty to state conclusions about the facts of
particular cases, not as a general standard. 1 [DAN B. DOBBS, THE LAW OF
TORTS] 577 (2000); see also [John C. P. Goldberg & Benjamin C. Zipursky,
The Restatement (Third) and the Place of Duty in Negligence Law,] 54 VAND.
L. REV. 712-717 (discussing problems associated with using the duty element of
negligence to render decisions that no breach occurred as a matter of law). Thus,
the issue in this case is not whether defendants had a duty to install protective
poles, or a duty to prevent a car from entering the restaurant, or some such other
fact-specific formulation. Because of the special relationship between defendants
and the decedent, they owed the decedent a duty of reasonable care. The issue is
whether, in light of the particular circumstances of this case, defendants breached
that duty. That question cannot be answered at this stage of the proceedings. See
Espinoza, 165 Ill.2d at 114, 208 Ill.Dec. 662, 649 N.E.2d 1323 (issue of breach is
for jury to decide provided there is genuine issue of material fact regarding that
issue).
Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006).
20

By contrast, the California Supreme Court, in cases involving a land possessor's duty to protect
entrants from third-party criminal attacks, engages in a balancing that essentially duplicates what
the jury would do in deciding breach. See Castaneda v. Olsher, 162 P.3d 610 (Cal. 2007). Justice
Kennard, in a dissenting opinion, wrote:
This is yet another case in which this court has had to grapple
with the issue of a business owner's obligation to undertake efforts
to protect others from the criminal acts of third parties. Instead
of providing much-needed clarity, this court's decisions in this
area have engendered confusion. The core of this confusion is the
improper intermingling of two distinct conceptsduty, a question
for the court, and breach of that duty, a question for the jury. In
treating breach as if it were part of the duty analysis, and thus an
issue of law for the trial court to decide, the court usurps the role
of the jury as trier of fact.
Id. at 622-623.
The learned-intermediary rule is dealt with in Restatement Third, Torts: Products Liability 6(d)
(1) and Comment e.
For other examples of courts balancing the basic negligence variables under the heading of duty
for entire categories of actors, see, e.g., Shute v. Moon Lake Elec. Ass'n, 899 F.2d 999 (10th Cir.
1990) (applying Utah law); Parsons v. Crown Disposal Co., 936 P.2d 70 (Cal. 1997); Chavez v.
S. Cal. Edison Co., 33 Cal.Rptr.2d 856 (Ct. App. 1994); Gouge v. Cent. Ill. Pub. Serv. Co., 582
N.E.2d 108 (Ill. 1991); Lamkin v. Towner, 563 N.E.2d 449 (Ill. 1990); Groncki v. Detroit Edison
Co., 557 N.W.2d 289 (Mich. 1996); McMillan v. Mich. State Highway Comm'n, 393 N.W.2d 332
(Mich. 1986); Snyder v. Am. Ass'n of Blood Banks, 676 A.2d 1036 (N.J. 1996).
For a review of the recent treatment of the duty issue under Texas law, compare William Powers,
Jr., Judge and Jury in the Texas Supreme Court, 75 TEX. L. REV. 1699 (1997) with William V.
Dorsaneo, III, Judges, Juries, and Reviewing Courts, 53 SMU L. REV. 1497 (2000).
Comment j. The proper role for foreseeability.This Comment was not contained in the original
version of this Section in Tentative Draft No. 1. However, an article written after Tentative Draft
No. 1 makes an attractive case for removing the foreseeability of risk from duty determinations.
See 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 (2005).
21

Courts sometimes rely on the unforeseeability of risk as a ground for concluding that the defendant
has no duty. Typically this occurs in cases that present some good reason to question the
default standard of care provided in Subsection (a) of this Section. See, e.g., Bailey v. Huggins
Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768 (Colo. Ct. App. 1997) (relying alternatively on
the unforeseeability of the risk of harm, court held that defendant-dentist who participated in
ongoing debate about whether silver-amalgam used to fill teeth posed any risk to patients had no
duty to plaintiff who had silver-amalgam removed from her teeth based on defendant's position
that such material posed a risk to some patients); Langle v. Kurkul, 510 A.2d 1301, 1306 (Vt.
1986) (holding that social host owes no duty unless host furnishes alcoholic beverages to one
who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an
automobile); Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) (relying on the foreseeability and
likelihood of injury, in part, to conclude that social host owes no duty with regard to serving
alcohol); Nivens v. 7-11 Hoagy's Corner, 920 P.2d 241 (Wash. Ct. App. 1996) (because reasonable
store operator would not have foreseen danger posed by loitering teenagers in parking lot, store
operator owed no duty to invitee customers). It also is employed by courts when confronted
with whether an affirmative duty exists and, if so, its scope. See Chapter 7; Posecai v. Wal-Mart
Stores, Inc., 752 So.2d 762, 766 (La. 1999) (imposing an affirmative duty to protect patrons on the
premises from third-party assaults when the criminal act in question was reasonably foreseeable
to the owner of the business); Walls v. Oxford Mgmt. Co., 633 A.2d 103, 105 (N.H. 1993)
(stating, in affirmative-duty case, that duty is limited to those risks that are reasonably foreseeable).
Sometimes courts state that the duty of reasonable care arises only when there is a foreseeable
risk of harm. See, e.g., Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H. 2003) (All
persons have a duty to exercise reasonable care not to subject others to an unreasonable risk of
harm. Whether a defendant's conduct creates a risk of harm to others sufficiently foreseeable to
charge the defendant with a duty to avoid such conduct is a question of law.) (citations omitted);
Brennen v. City of Eugene, 591 P.2d 719, 723 (Or. 1979) (we conclude that the agent's duty
should be defined in terms of foreseeability); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d
523, 525 (Tex. 1990) (In determining whether a defendant was under a duty, the [trial] court
will consider several interrelated factors, including risk, foreseeability, and likelihood of injury
weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding
against the injury, and the consequences of placing the burden on the defendant. Of all these factors
foreseeability of risk is the foremost and dominant consideration. (quoting El Chico Corp. v.
Poole, 732 S.W.2d 306, 311 (Tex. 1987))). Sometimes courts use a no-duty ruling based on lack of
foreseeability as a surrogate for ruling that no breach existed as a matter of law. See, e.g., Williams
v. Cingular Wireless, 809 N.E.2d 473 (Ind. Ct. App. 2004) (seller of cellphone to customer who
caused automobile accident while talking on cellphone owed no duty to person injured in accident,
relying in part on lack of foreseeability); cf. Young v. Bryco Arms, 821 N.E.2d 1078 (Ill. 2004)
22

(dismissing nuisance claim against handgun manufacturers for designing and marketing guns in
a fashion intended to appeal to juveniles on the grounds that criminal use of the handguns by
juveniles who killed plaintiff's decedents was not foreseeable and therefore proximate cause was
absent). For a commentator's claim that 47 states plainly do give foreseeability a significant
role in duty analysis, see Benjamin C. Zipursky, Foreseeability in Breach, Duty, and Proximate
Cause, 44 WAKE FOREST L. REV.__ (forthcoming Dec. 2009). For a court that resisted the
allure of unforeseeability as a basis for a no-duty ruling, instead recognizing that the question of
foreseeability required determination by the factfinder, see In re World Trade Center Bombing
Litig., 776 N.Y.S.2d 713 (Sup. Ct. 2004) (holding foreseeability of 9/11 terrorist destruction of
the World Trade Centers was a question for the jury).
The California Supreme Court has been in the vanguard in suggesting that foreseeability has an
important role to play in determining whether a duty exists. See Tarasoff v. Regents of Univ. of
Cal., 551 P.2d 334, 342 (Cal. 1976); Wiener v. Southcoast Childcare Ctrs., Inc., 88 P.3d 517 (Cal.
2004). This Restatement rejects that approach. So long as the actor's conduct created a risk of
harmthe predicate for a duty under this Sectionforeseeability has no role under this Section
and Restatement in a determination that a duty exists vel non. For a critique of California courts'
increasing tendency to inject duty into every negligence case and to employ foreseeability as a
ground for a no-duty determination, see Dilan A. Esper & Gregory C. Keating, Abusing Duty,
79 S. CAL. L. REV. 265 (2006). The California Supreme Court, despite its pronouncements that
foreseeability is central to duty analysis, reaffirmed a framework for duty that is almost identical
to that provided in this Section:
[a]ll persons are required to use ordinary care to prevent others
being injured as the result of their conduct. Although it is true
that some exceptions have been made to the general principle that
a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence
of a statutory provision declaring an exception to the fundamental
principle enunciated by section 1714 of the Civil Code, no such
exception should be made unless clearly supported by public
policy.
John B. v. Superior Court, 137 P.3d 153, 161-162 (Cal. 2006) (quoting Rowland v. Christian, 443
P.2d 561, 564 (Cal. 1968)).
Many of the classic and most important cases addressing duty in Anglo-American jurisprudence
have relied on foreseeability. See Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976);
MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916); Donoghue v. Stevenson, [1932]
23

A.C. 562 (H.L.) (appeal taken from Scot.) (U.K.); Heaven v. Pender, (1883) 11 Q.B.D. 503. Yet
all of these cases employed foreseeability to expand the scope of duty to its modern formulation,
reflected in 7. None of these cases employed a lack of foreseeability as a basis for concluding
that no duty existed, the practice that this Comment addresses and rejects.
As Dean Prosser observed, half a century ago, courts often relied on foreseeability for deciding
duty questions because it appeared that duty can be found through a scientific legal test.
William L. Prosser, Palsgraf Revisited, 52 MICH. L. REV. 1, 19 (1953). More contemporary
academic commentary on the use of foreseeability by courts reveals additional criticism. See
Thomas C. Galligan, Jr., A Primer on the Patterns of Negligence, 53 LA. L. REV. 1509, 1523
(1993) (judges should not rely on, or hide behind, words like foreseeable, unforeseeable
and whatever other magic mumbo jumbo courts could use to obfuscate the policies that were
really at the heart of their decisions); Patrick J. Kelley, Restating Duty, Breach, and Proximate
Cause in Negligence Law: Descriptive Theory and the Rule of Law, 54 VAND. L. REV. 1039,
1046 (2001) (foreseeability is so open-ended that [it] can be used to explain any decision, even
decisions directly opposed to each other. [so as to] undermine clarity and certainty in the law
whenever [it is] embedded in a legal standard); see also David Howarth, Duty of Care, in THE
LAW OF TORT 629, 634 (2d ed. Ken Oliphant, ed. 2007) (concluding that foreseeability has no
honest role in determinations of duty and that, when England had civil juries, it had been used
to screen cases in which breach was absent, and in modern times to truncate weak cases at an
early stage). An example of an unhelpful foreseeability generalization that obscures the principle
behind the rule criticized by Dean Galligan can be found in Sanders v. Acclaim Entertainment,
Inc., 188 F.Supp.2d 1264, 1272 (D. Colo. 2002): Generally, under Colorado law a person has no
responsibility to foresee intentional violent acts by others.
A few courts have accepted the premise of this Comment that foreseeability does not bear on
determining whether a duty exists. The most recent and most explicit is Gipson v. Kasey, 150 P.3d
228, 231 (Ariz. 2007), in which the Arizona Supreme Court, relying on this Comment, wrote:
We acknowledge that our case law has created some confusion and lack of
clarity as to what extent, if any, foreseeability issues bear on the initial legal
determination of duty. Riddle v. Ariz. Oncology Servs., Inc., 924 P.2d 468, 470
n.3 (Ariz. Ct. App. 1996). To clarify, we now expressly hold that foreseeability is
not a factor to be considered by courts when making determinations of duty, and
we reject any contrary suggestion in prior opinions.
Whether an injury to a particular plaintiff was foreseeable by
a particular defendant necessarily involves an inquiry into the
specific facts of an individual case. See W. Jonathan Cardi, Purging
24

Foreseeability: The New Version of Duty and Judicial Power

in the Proposed Restatement (Third) of Torts, 58 VAND. L.
REV. 739, 801 (2005). Moreover, foreseeability often determines
whether a defendant acted reasonably under the circumstances or
proximately caused injury to a particular plaintiff. Such factual
inquiries are reserved for the jury. The jury's fact-finding role could
be undermined if courts assess foreseeability in determining the
existence of duty as a threshold legal issue. See id. at 741. Reliance
by courts on notions of foreseeability also may obscure the
factors that actually guide courts in recognizing duties for purposes
of negligence liability. Id.
Foreseeability, as this Court noted in Martinez, is more properly
applied to the factual determinations of breach and causation than
to the legal determination of duty. [Martinez v. Woodmar IV
Condos. Homeowners Ass'n,] 941 P.2d at 223 ([F]oreseeable
danger [does] not dictate the existence of duty but only the nature
and extent of the conduct necessary to fulfill the duty.); cf.
Palsgraf v. Long Island R.R., 162 N.E. 99, 102 (N.Y. 1928)
(Andrews, J., dissenting) (arguing that foreseeability does not
determine duty but is a factor in determining proximate cause).
We believe that such an approach desirably recognizes the jury's
role as factfinder and requires courts to articulate clearly the
reasons, other than foreseeability, that might support duty or noduty determinations. See RESTATEMENT (THIRD) OF TORTS:
LIABILITY FOR PHYSICAL [AND EMOTIONAL] HARM 7
cmt. j (Proposed Final Draft No. 1, 2005) (Third Restatement)
(rejecting foreseeability as a factor in determining duty).
Similarly, the Wyoming Supreme Court explained in rejecting foreseeability as a basis for
determining duty: Instead of perpetuating the illusion, we prefer to set forth the legal duty and
outline the policy principles which persuade us to recognize the legal duty and its limitations.
Gates v. Richardson, 719 P.2d 193 (Wyo. 1986) (deciding that a duty to avoid negligent
infliction of emotional harm should be recognized and that foreseeability plays no role in such
determination); see also Maguire v. Hilton Hotels Corp., 899 P.2d 393 (Haw. 1995) (foreseeability
for duty purposes is a matter to be determined by the jury); Moyle v. Y & Y Hyup Shin Corp., 173
P.3d 535 (Haw. Ct. App. 2007) (although duty is a question of law for the court, when reasonable
25

foreseeability is in dispute the jury must resolve it), vacated on other grounds, 191 P.3d 1062
(Haw. 2008); Herrera v. Quality Pontiac, 73 P.3d 181, 196 (N.M. 2003) (Bosson, J., concurring)
(When we attempt to define legal duty in terms of a foreseeable plaintiff, it is all too tempting to
use foreseeability as a surrogate for result-oriented conclusions.); In re New York City Asbestos
Litig., 840 N.E.2d 115, 119 (N.Y. 2005) (foreseeability bears on the scope of a duty, not whether a
duty exists in the first place); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008)
(Holder, J., concurring and dissenting) (criticizing the majority opinion for retaining foreseeability
in the determination of duty and arguing for adoption of the Third Restatement treatment of
foreseeability for duty purposes). A Justice of the Indiana Supreme Court has commented on the
confusion generated by employing foreseeability in duty determinations given its appropriate role
in deciding breach and scope of liability (proximate cause). See Theodore R. Boehm, A Tangled
WebbReexamining the Role of Duty in Indiana Negligence Actions, 37 IND. L. REV. 1 (2003).
But see Satterfield, supra (recognizing criticism of the use of foreseeability to determine duty, but
concluding it should be retained because the experience of most courts has been that maintaining a
role for foreseeability when addressing questions regarding the existence and scope of duty assists
more than it impedesthe application and development of the law of negligence).
Determinations of no duty are categorical while foreseeability cannot be determined on a
categorical basis. Foreseeability necessarily depends on the specific facts of the case and hence is
appropriately addressed as part of the negligence determination. See 3 (foreseeable risk of harm
and severity primary factors in determining negligence). Thus, when courts attempt to determine
foreseeability as an aspect of the duty determination, they either are led to decide it based on
the specific facts of the case before thema matter ordinarily for the juryor to estimate some
average foreseeability of risk across the entire duty category with which the court is concerned.
Yet that average does not reveal the range of foreseeability that may exist across the category based
on specific facts of the cases within that category. For an illustration of the mischief that can occur
when courts attempt categorical foreseeability determinations, see In re Certified Question from
Fourteenth Dist. Court of Appeals of Texas, 740 N.W.2d 206, 226-228 (Mich. 2007) (Cavanagh,
J., dissenting).
Reliance on foreseeability in finding that no duty exists can also lead courts astray from the real
issue that requires confrontation. Thus, in Chavez v. Desert Eagle Distribution Co., 151 P.3d 77
(N.M. Ct. App. 2006), plaintiff was injured by a drunk driver who had been served at an Indian
casino that, celebrating its opening, served alcohol continuously for 24 hours. Plaintiff sued the
casino and several wholesalers who sold alcohol to the casino. After concluding that sales by the
casino, which had settled with plaintiffs, were consistent with state law, the court struggled for a
rationale to support holding that the wholesalers were not liable:
26

Given the prevalence of drunk driving in our state, it is reasonable

for distributors of alcohol to believe that some of the alcohol they
sell may be misused and that such misuse may result in alcoholrelated accidents and deaths. However, as the district court aptly
noted during the hearing below, such risks are the foreseeable
consequences of permitting the use and sale of alcohol in our
society. We do not believe, nor do Plaintiffs suggest, that this
general recognition that alcohol consumption results in injuries
and death is sufficient to meet the foreseeability requirement of
duty in the present case; otherwise, the legitimate sale of alcohol
would create strict liability for all sellers. Rather, we believe that
something more is required.
Id. at 84. Had the court eschewed foreseeability as a rationale and instead recognized that the
wholesalers were not negligent as a matter of law for refusing to sell alcohol to a licensed retailer
who was going to sell it legally, it could have avoided the awkwardness of acknowledging that
the risk was foreseeable but relying on foreseeability to conclude the defendants owed no duty
to the plaintiffs.
Avoiding reliance on unforeseeability as a ground for a no-duty determination and instead
articulating the policy or principle at stake will contribute to transparency, clarity, and better
understanding of tort law. Thus, in a recent notable case, the California Supreme Court held that
a restaurant's duty did not extend to complying with the demands of a robber in order to protect
patrons of the restaurant from the risk that the robber would harm them. Ky. Fried Chicken of
Cal., Inc. v. Superior Court, 927 P.2d 1260 (Cal. 1997). There are good reasons for such a decision
not providing robbers with additional incentives to engage in robberybut unforeseeability is
not one of them. Courts that have held that no duty exists despite foreseeable harm recognize
that policy and principle are critical to no-duty determinations. See Cohen v. Cabrini Med. Ctr.,
730 N.E.2d 949 (N.Y. 2000) (doctor performing surgery on husband to enhance his ability to
impregnate spouse owed no duty to spouse who suffered physical injury due to failure of surgery
and subsequent efforts to conceive a child).
Just as foreseeability is unhelpful in determining whether there is no duty, foreseeability is
unhelpful for expanding the scope of tort law, such as in the area of affirmative duties or liability
for emotional harm. The reasons for limiting liability in those areas is not because of a lack of
foreseeability; rather it is because of other policies that exist and counsel confining liability. For
a court that recognized it should rely on policy rather than foreseeability to decide whether to
impose a duty not to negligently entrust real property to a potential tenant, see Gabaldon v. Erisa
27

Mortgage Co., 949 P.2d 1193 (N.M. Ct. App. 1997), aff'd in part, rev'd in part on other grounds,
990 P.2d 197 (N.M. 1999).
Comment l. Relationship with affirmative duties to act.One useful characterization of whether an
actor has created a risk as distinguished from whether a pure affirmative duty is at issue is to
consider whether, if the actor had never existed, the harm would not have occurred. See LEO
KATZ, BAD ACTS AND GUILTY MINDS 143 (1987).
Case Citations - by Jurisdiction
C.A.5
C.A.7
E.D.N.Y.
S.D.N.Y.
Ariz.
Ariz.App.
Cal.
Cal.App.
Conn.
Fla.App.
Ill.
Ill.App.
Iowa,
Iowa
Iowa,
Iowa
Iowa,
Iowa
Iowa.
Md.
Minn.App.
Neb.
N.M.
N.M.App.
N.C.App.
28

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