Law Commons^™

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

The Restatement (Third) And The Place Of Duty In Negligence Law, John C.P. Goldberg, Benjamin C. Zipursky

Vanderbilt Law Review

A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a duty of reasonable care and injured her by breaching that duty. Every state adheres to the four-element account,' with perhaps two exceptions. That ac- count was prominent in the various editions of Prosser's treatise, and is likewise prominent in Professor Dobbs' successor treatise. Leading casebooks also feature the four-element formula.

Given the widespread adoption of the four-element test, one would have expected to encounter it somewhere in the two drafts of …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, Richard W. Wright

Vanderbilt Law Review

Few issues in tort law are more in need of clarification than those encompassed by the concepts of legal cause and duty, which are not only the subject of "opaque, confused and contradictory" treatments in the American Law Institute's Restatement of the Law of Torts,' relied upon by many American courts, but also the subject of even more opaque and confused treatment in many foreign jurisdictions. The focus of this conference is on tort law in the United States, and my assigned task is to comment on the issues encompassed by the concept of legal cause, especially as they are …

The Duty Concept In Negligence Law: A Comment, Robert L. Rabin

Vanderbilt Law Review

As critics John Goldberg and Benjamin Zipursky see it, the draft version of the Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") that is the occasion for this Symposium has relegated the duty issue in negligence law to a relatively minor, nay-saying role. More particularly, duty is not directly mentioned by the Reporter in Section 3, which provides that "[a]n actor is subject to liability for negligent conduct that is a legal cause of physical harm.' And in Section 6, when the Reporter does get around to addressing the subject of duty, it is in arguably backhanded, no-duty …

Torts -- 1961 Tennessee Survey (Ii), John W. Wade

Vanderbilt Law Review

The twenty tort cases decided during the shorter survey period this year all involved negligence actions.' Most of the cases involved the application of established rules or standards to new fact situations, some of them being fairly routine. Only two cases were of striking significance.

Torts -- 1957 Tennessee Survey, John W. Wade

Vanderbilt Law Review

One who performs an act is ordinarily under a duty to act carefully.When the defendant has acted there is seldom a problem regarding the duty to use care. But when the defendant has failed to act the question of duty raises a substantial problem.' The rule is stated that there is no duty to act, but the exceptions are many. One arises when there is a particular relationship between the parties; another, when the defendant had commenced to act. Both exceptions are involved in Union Carbide & Carbon Corp. v. Stapleton.