Unfortunately for the scholars, courts don’t always embrace their sophisticated theoretical reconstructions of tort law and faithfully apply them to the cases at hand. Instead, the time-honored common law method of applying established legal principles in new settings continues to trump theoretical purity. This article traces the persistence of duty analysis in recent case law and argues that there is substantial resistance to the Third Restatement’s radical skepticism about the nature of a tort “duty.” It concludes that the eulogies of tort duty have been grossly premature. Finding a duty is still central to tort liability, even if in most cases the question is easily determined.
Tort Duty in the Restatements
The American Law Institute produces restatements of the law that simultaneously reflect and advance the state of the common law. The concept of tort duty in the Restatement (Second) of Torts (Second Restatement) was a substantive element of negligence, but the Third Restatement eliminated a positive requirement of demonstrating a duty owed to the defendant. This section reviews the emergence of the Third Restatement’s approach and the contemporary critique of that approach by Professors John Goldberg of Harvard Law School and Benjamin Zipursky of Fordham University School of Law.
Second Restatement: general duty of care. The Second Restatement defines “duty” by explaining that the word is used “to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause.” The Second Restatement includes the concept of duty within the elements of a cause of action for negligence, although interestingly it does not use the word “duty” in doing so. The Second Restatement provides that an “actor is liable for an invasion of an interest of another, if: . . . (b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included.” The Second Restatement illustrates this principle with Judge Cardozo’s famous opinion in the Palsgraf case, in which he found that Palsgraf was too remote from the negligent acts of the trainmen for the railway company to owe her a duty. The Second Restatement does not sharply distinguish the question of the duty owed and the separate question of the scope of liability (proximate cause), although it acknowledges that most of the decisions before the Palsgraf case treated the issue as one of proximate cause. Distinguishing a determination of duty from the proximate cause assessment is important primarily because the former is treated as a question of law reserved to the judge for determination.
The Second Restatement places a general duty of due care on all persons, but only with respect to those risks of injury that are foreseeably engendered by the actor’s conduct. As Cardozo famously wrote:
Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do.” . . . The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another. . . . What the plaintiff must show is “a wrong” to herself; i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct “wrongful” because unsocial, but not “a wrong” to any one. . . . Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.
Cardozo’s approach is illustrated in the Second Restatement as follows: “A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.” Simply put, A owes no duty to D with respect to providing the weapon to the boy. Negligence is not just in the air, but rather is a breach of an obligation that is owed to the complaining party.
Cardozo emphasized that courts must first find that a duty was owed to the plaintiff before analyzing legal cause and proximate cause. The lines quickly become blurred because both scope of duty and proximate cause are shaped by foreseeability considerations. As Cardozo aptly noted, the “orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. . . . The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” The overlapping use of foreseeability in each analysis should not lead courts to conflate duty and proximate cause into a generic inquiry into the foreseeability of harm suffered, leaving it to the jury to resolve as a question of fact.
California’s adoption of the “Rowland factors” test. The general duty rule described by Cardozo was augmented by “limited duty” rules that shaped the scope of a duty owed in particular circumstances by making it dependent upon the relationship between the parties. For example, landowners were protected from liability by special rules that altered the scope of their duty depending on whether the injured party was an invitee, licensee, or trespasser. These categories in turn required development of complex doctrinal rules to limit the scope of landowners’ duties in response to differing circumstances.
In 1968, the California Supreme Court in Rowland v. Christian rejected the baroque common law approach to special duty rules, declaring that all persons simply owe a general duty to others unless clear considerations of public policy dictate otherwise.
A departure from this fundamental principle [of a general duty] involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, 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, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.
The Rowland decision persuaded courts in some jurisdictions to reject complex duty rules in favor of embracing a general duty rule that moved away from focusing on the relationship between the parties. Nevertheless, a substantial number of courts in other jurisdictions refused to follow Rowland and retained the detailed duty rules pertaining to land possessors under the traditional common law.
Third Restatement: presumed duty. Building off Rowland and its limited following, the Third Restatement radically altered the duty element. It states that every person owes a general duty to the world to exercise reasonable care, with the actor whose unreasonable behavior causes physical injury being held liable “unless the court determines that the ordinary duty of reasonable care is inapplicable.” Consequently, there is no need for courts to even consider whether there is a duty owed in the great majority of cases. Duty serves an important function only because it is determined as a matter of law and therefore can serve as a means for judges to “promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.” In the Third Restatement’s approach, the relationship between the parties is just one factor to consider in determining whether the presumed duty should be limited or eliminated in a particular case; it is not itself an element of negligence.
If Cardozo’s majority opinion in Palsgraf makes the case for the centrality of duty to tort liability, the dissenting opinion by Judge Andrews makes the case for the duty skepticism of the Third Restatement. Andrews makes his point clearly: “The proposition is this: Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” Thus, due care involves “not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure.” In short, due care “is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone.” Under this view, imposing limitations on liability is a question of proximate cause rather than defining the scope of duty owed to another.
What we do mean by the word “proximate” is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. . . . Once again, it is all a question of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.
Andrews presciently articulates the duty skepticism later embraced by the Third Restatement.
The relational character of tort liability: recognizing wrongs. Professors Goldberg and Zipursky argue that many tort scholars have eliminated the duty element in favor of a presumed general duty to the world that is enforced by a massive tort-insurance regulatory system of compensation. Rather than vindicating the breach of a duty owed to a certain person, contemporary theorists often describe tort law in terms of underlying macroeconomic efficiencies or the conceptual structure of deterrence and distributive justice. Goldberg and Zipursky, however, insist that tort law “is not . . . a law of deterrence and compensation. It is instead law that enjoins mistreatments of one person by another, provides redress for such mistreatments, and thereby contributes to the protection of persons from mistreatment.” They contend that many theorists have misunderstood cases such as MacPherson as evidencing a “post-duty” world, rather than understanding that the court’s elimination of the privity requirement in that case reaffirmed the centrality of duty by expanding the scope of a manufacturer’s duty. Despite their cogent historical and theoretical analysis, the Third Restatement expressly rejected their focus on duty as an independent element of liability. The reporters clearly and “self-consciously set out to produce an account of negligence that evades the concept of the duty.”
Foreseeability is certainly a factor when defining the scope of tort duties, but Goldberg and Zipursky emphasize that the foreseeability of an injury alone is insufficient to impose liability on an actor. Indeed, it is difficult to understand tort law at all if the question of duty isn’t taken seriously. Rather than “enabling courts to clarify their reasoning,” duty skepticism encourages courts “to avoid reasoning altogether.” For example, if a defendant negligently operates a car and severely injures another person, it is certainly foreseeable that the injured party’s friends and family members will suffer a loss because of the defendant’s actions. However, their loss is not a result of the defendant breaching a duty owed to those persons and therefore is not a legal wrong. The old maxim—damnum absque injuria (a party might cause injury but not be liable for that harm)—still appears to be highly relevant in the real world of tort litigation.
Modern Tort Duty in the Case Law
The duty skepticism of the Third Restatement has not received wide acceptance in the courts. This section explores case law developments that vindicate the continuing importance of duty analysis as described by Professors Goldberg and Zipursky. After examining the different jurisdictional approaches to duty, it compares how each handles an employer’s liability for injuries suffered by an employee’s family and friends when the employee carries a dangerous element—such as asbestos fibers or the COVID-19 virus—from the workplace to the employee’s home. In these recent cases, many courts have focused on whether the employer owes a duty to persons other than its employee in a manner that is difficult to reconcile with the duty skepticism of the Third Restatement.
California: duty limited by public policy considerations, including foreseeability. California’s approach to negligence law, codified in 1872, provides that everyone is responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” As described above, in Rowland the court determined that the statutory general duty of ordinary care is subject to exception only by statute or for reasons clearly supported by public policy. By eliminating the convoluted limited duty rules, the court sought to simplify the determination of duty without eliminating it altogether.
A recent case illustrates how California courts use the Rowland factors to determine whether the presumptive duty is overcome. In Hacala v. Bird Rides, Inc., a pedestrian walking down the sidewalk suffered severe injuries when she tripped on a scooter owned by the defendant rental company that a customer had parked on the sidewalk. The trial court dismissed the action, finding that the scooter company did not owe the pedestrian a duty of care. The California Supreme Court acknowledged that there is a general duty not to injure others, but then applied the Rowland factors to determine if there should be an exception that immunizes a dockless scooter rental business from liability for negligently managing its property in the hands of customers. The court did not analyze whether this particular defendant should be absolved of a duty on these facts, but rather whether the category of similar business models should be regarded as absolved of a duty to the general public as a matter of public policy. The former is a factual question for the jury, whereas the latter is a question of law for the court.
The Rowland factors differ significantly from the Third Restatement because they include several “foreseeability” factors in assessing duty. In contrast, the Third Restatement uncouples foreseeability and duty entirely, reasoning that foreseeability is always a question determined by the jury. The Third Restatement explains:
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.
Although Rowland was an important step toward the Third Restatement’s change in duty analysis, California has rejected the extreme duty skepticism reflected in that change.
We can see the significance of the California approach when considering a “take-home” asbestos case brought against employers. In Kesner v. Superior Court, the California Supreme Court considered whether employers owe a duty of care to prevent secondary exposure to asbestos when their employees, who were directly exposed at work, carried asbestos home and exposed members of their household. The court relied on the Rowland factors, “not to determine ‘whether a new duty should be created, but whether an exception to Civil Code section 1714 . . . should be created.’” The court reframed the issue to clarify that its “task is to determine whether household exposure is categorically unforeseeable and, if not, whether allowing the possibility of liability would result in such significant social burdens that the law should not recognize such claims.”
The court first looked to the most important Rowland factors regarding the foreseeability of injury and concluded that take-home exposure was a foreseeable risk:
It is a matter of common experience and knowledge that dust or other substances may be carried from place to place on one’s clothing or person, as anyone who has cleaned an attic or spent time in a smoky room can attest. Defendants would not need to know the “precise . . . manner” that exposure occurred (i.e., that Lynne laundered Mike’s clothing or that George roughhoused with his nephew Johnny) in order to recognize the general risk posed by workers leaving an area with airborne dust-based toxins and then coming into contact with members of their households.
The court found that the nonforeseeability factors, such as the availability of insurance, also weighed in favor of finding a duty. Expressly rejecting the Third Restatement approach, the court held that “[w]here it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” The employer was deemed to have a sufficient relationship with the employee’s household members, but not members of the general public who might randomly come into contact with the employee. This same reasoning led the court to find later that employers have no duty to protect their employees’ household members nor the public from the easily contracted COVID-19.
Courts that fully embrace the Third Restatement. In 2009, Iowa was one of the first states to fully adopt the Third Restatement duty rule. Although Iowa had long considered foreseeability when determining duty, in Thompson v. Kaczinski the Iowa Supreme Court found the Third Restatement’s approach compelling. The defendant property owner had failed to secure a trampoline on his property, resulting in it being blown into a roadway and causing injury to the plaintiff. The court determined that foreseeability was not a relevant consideration for finding that the defendant owed a duty to the plaintiff. In the absence of strong public policy arguments to protect a class of landowners, the court upheld the presumption of a general duty.
The following year, Nebraska also expressly adopted the Third Restatementin A.W. v. Lancaster County School District 0001. Rejecting its previous use of a risk-utility test to determine the existence of a duty, Nebraska held that foreseeability is a factor only for the jury to determine whether a defendant’s conduct failed to meet the obligation of reasonable care. The case concerned whether a school district owed a duty to protect a student from sexual assault on the premises during a school day. Whether such an assault was foreseeable was not the issue; rather, the court clarified that there was a duty owed as a matter of law, with foreseeability being a question reserved for the jury in its determination of breach.
The Nebraska court was persuaded that viewing foreseeability in the context of breach was “tautological,” but also stated that eliminating foreseeability from the analysis of duty was not a “fundamental” change because it just amounted to “rearranging the basic questions that are posed by any negligence case and making sure that each question has been put in its proper place.” Foreseeability does not control whether the court finds a duty, but instead is “properly framed as disputing whether, considering the foreseeable likelihood of harm, [the defendant] exercised reasonable care under all the circumstances.”
The Third Restatement duty skepticism leads to a different response to the question of employer take-home liability. In Van Fossen v. MidAmerican Energy Co., the Iowa Supreme Court analyzed whether the owners of a power plant found to have asbestos owed a general duty to exercise reasonable care to warn the decedent, the wife of an independent contractor who worked at the plant, of health hazards associated with exposure to asbestos. The court reiterated that Iowa had adopted the Third Restatement’s duty analysis of a general duty, where foreseeability is not considered, but in this case found that the general duty to exercise reasonable care should be modified.
Because the plaintiff was an independent contractor and thus not under the direct control of the plant owners, the court held that finding the plant owners liable under a general duty of care would dramatically expand liability. The court invoked public policy reasons as the ground for limiting the duty despite the foreseeability of injury. The court noted that “[i]f employers of independent contractors were to bear an unlimited general duty to exercise reasonable care, as [the plaintiff] urges, when their contractors’ work involves asbestos, the universe of potential persons to whom the duty might be owed is unlimited.” Although ostensibly applying the conceptual framework of the Third Restatement, the court focused on the relationship of the parties in its policy analysis.
Courts that adopt the Third Restatement only in part. Wisconsin expressly follows Judge Andrews’s dissenting opinion in Palsgraf, but it does not fully accept the Third Restatement approach. The Third Restatement considers the public policy factors in the context of determining whether a presumed duty is overcome, whereas Wisconsin applies the public policy analysis only after all the elements of negligence are established. In Nichols v. Progressive Insurance Co., the defendants were sued for permitting minors on their property to drink alcohol brought by the minors, leading to a car accident that injured the plaintiff. The court acknowledged that the traditional elements of liability were present, but refused to endorse a “significant extension” of common law liability to social hosts. The court expressly distinguished its decision to deny liability as a question that is essentially separate from the analysis of duty or causation. Nevertheless, in reaching this determination, the court clearly was hewing to traditional notions of the relationship of the parties.
Arizona courts have followed the Third Restatement in removing foreseeability from the analysis of duty, but they reject the presumption of a general duty owed to the world at large. Arizona continues to link duty to a relationship between the parties that is grounded in statute or considerations of public policy. The Third Restatement uses public policy analysis to limit the scope of duty, but Arizona inverts this analysis and instead determines the existence of a duty in the first instance by considering public policy. In Gipson v. Kasey, the court found that a person prescribed drugs owes a duty of care when giving their drugs to another person to use. The court rejected the use of foreseeability in the duty analysis, but also rejected the Third Restatement presumption of a duty. The court found that a duty of care owed by the person giving drugs to the plaintiff was premised on the relationship of the parties as expressed in the public policy underlying various statutory controls on distribution of controlled substances.
Courts that have only adopted part of the Third Restatement approach to duty address the question of take-home liability differently. In Quiroz v. Alcoa Inc., the Arizona Supreme Court considered whether an employer owed a duty of care to the child of an employee who contracted mesothelioma from take-home asbestos exposure. The court rejected the plaintiff’s reliance on the Third Restatement and determined that no special relationship between the employer and the employee’s child gave rise to a legal duty in this case.
Undeniably, there are major differences between the Third Restatement’s duty framework and Arizona’s framework. In contrast to the Third Restatement, Arizona does not use risk creation to determine duty. Instead, with the elimination of foreseeability, we base duty solely on special relationships and public policy. And, unlike the Third Restatement we determine duty before a defendant, by his acts or omissions, places a plaintiff at risk of physical injury.
The court rejected the claim that public policy supports recognition of a duty in these circumstances, given the potentially unlimited number of potential plaintiffs.
Creating a tort law system based on a presumed duty owed by everyone all the time carries with it serious consequences. As an initial matter, limitless duties expand tort liability beyond manageable bounds. The present case illustrates this point. Under the Third Restatement approach, [the employer] would have owed a presumed duty of care to any person that [the employee] encountered after leaving the plant . . . [including] neighbors and friends, babysitters and cab drivers, waiters and bartenders, dentists and physicians, and fellow church members. If the asbestos fibers were transferred to the clothes of [the employee’s] children, then the presumed duty of care would have extended to the children’s playmates, schoolmates, and teachers. And of course, if each person contacted by [the employee] or his family members transferred asbestos fibers to other third parties, then [the employer’s] presumed duty would have expanded to an even wider circle of potential plaintiffs.
Although agreeing with the Third Restatement that foreseeability sheds no light on the question of duty, the court emphasized the necessity of finding a duty rooted in a special relationship or articulated public policy.
Courts that reject the Third Restatement entirely. Utah employs a five-factor test for determining whether a defendant owes a duty. In Mower v. Baird, the Utah Supreme Court considered whether a minor patient’s therapist owes a duty to the patient’s parents. The court cited the Third Restatement but then applied its five-factor duty analysis, which includes two plus factors (affirmative act rather than omission and legal relationship of the parties) and three minus factors (foreseeability or likelihood of injury, which party can best bear the loss, and other policy considerations). The court found that the plus factors “created” a duty and the minus factors weighed in favor of limiting the duty in this case, thereby specifically rejecting the Third Restatement presumption of a duty.
Utah’s reliance on foreseeability in its factor test is a rejection of the Third Restatement duty skepticism. Viewing duty and proximate cause as entirely separate and distinct elements, the court stated:
The foreseeability analysis for duty is distinct from that for breach or proximate cause. Foreseeability in a duty analysis is evaluated at a broad, categorical level. This analysis focuses on the general relationship between the alleged tortfeasor and the victim and the general foreseeability of harm rather than the specifics of the alleged tortious conduct such as the specific mechanism of the harm. Thus, the appropriate foreseeability question for a duty analysis is whether a category of cases includes individual cases in which the likelihood of some type of harm is sufficiently high that a reasonable person could anticipate a general risk of injury to others.
Michigan courts focus primarily on the relationship of the parties in determining if there is a duty owed and, like Utah, consider additional factors including foreseeability. In Rowland v. Independent Village of Oxford, LLC, the court analyzed whether a landlord owed a duty to an elderly resident who was locked outside due to an auto-locking door feature. The court engaged in a traditional analysis of the relationship between the parties by considering multiple factors that parallel California’s Rowland factors. The significant difference is that Michigan uses these factors to find a duty in the first instance, whereas California uses these factors as a limitation on the presumed duty.
Tennessee also employs a balancing test to determine if a duty exists, considering both foreseeability and public policy. In doing so, Tennessee determines whether a defendant owes a duty of care “by considering public policy and whether the risk of harm is unreasonable,” as determined by a balancing test. Although foreseeability is a “key factor” in the analysis, “foreseeability alone does not create a duty to exercise reasonable care. If the risk is foreseeable, then courts should weigh the remaining factors to determine if an imposition of duty is justified.” By not limiting the duty analysis to questions of law at the categorical level, this analysis expressly rejects the Third Restatement. There is no presumed general duty in Tennessee as duty is defined by what is reasonable, and what is reasonable is a question primarily of foreseeability and the other factors.
Not surprisingly, courts that reject the Third Restatement take a different approach to the take-home cases. In Satterfield v. Breeding Insulation Co., the Tennessee Supreme Court considered whether an employer owed the decedent, the daughter of an employee, a duty of care when she died due to take-home asbestos exposure. Finding that a duty was owed in this instance, the court recognized that
a duty of reasonable care arises whenever a defendant’s conduct poses an unreasonable and foreseeable risk of harm to persons or property. Thus, like the drafters of the [Third Restatement], we are of the view that “[e]ven when the actor and victim are complete strangers and have no relationship, the basis for the ordinary duty of reasonable care . . . is conduct that creates a risk to another.”
Because it began with the analytical framework that duty is not presumed, the court next turned to public policy considerations and employed a balancing test that considers eight factors. In applying this analytic framework, the court explained that a duty should be found based on these factors “when the degree of foreseeability of the risk and the gravity of the harm outweigh the burden that would be imposed if the defendant were required to engage in an alternative course of conduct that would have prevented the harm.”
Identifying foreseeability as the most important factor in its analysis, the court found that it was reasonably foreseeable that the decedent, and anyone else similarly situated, would be harmed by this take-home exposure. In weighing the remaining factors, the court determined that a duty was owed because the risk was substantial, the employer was aware of the risk, and the employer did not do enough to reduce the risk.
Restoring Duty to Negligence Analysis
Although it has some surface allure, the duty skepticism of the Third Restatement has failed to carry the day. Even courts that expressly accept the rule tend to fall back on considerations of foreseeability and the relationship of the parties to make an initial determination that a duty was owed to the plaintiff. Offering a well-reasoned counterargument to the Third Restatement’s assessment of the lack of utility to consideration of duty in the context of negligence claims, Professors Goldberg and Zipursky make a cogent claim that tort analysis without a robust consideration of the nature of the duty owed is likely to engender more confusion than clarity.
In the end, California’s Rowland case provides a reasonable and workable rule. Combining foreseeability and relationship factors to determine duty as a matter of law permits flexibility without simply leaving the case to the jury. California’s approach to take-home liability provides an example of the wisdom of this approach. As a matter of law, the court was able to distinguish the employer’s duty to members of the employee’s household from an absence of duty to the public at large regarding asbestos exposure. In the context of the much more contagious and ubiquitous COVID-19 illness, public policy reasons overcame the relationship between the household members and the employer.
As Cardozo advised us nearly a century ago, we should not presume negligence “in the air.” Attempting to eliminate the consideration of a duty owed from negligence analysis will obscure the reasoning and decisions by courts and juries. Duty must be premised on the relationship of the parties and considerations of public policy, developed by the courts in the traditional common law manner.
