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Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating
Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating
Gregory C. Keating
Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …
Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating
Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating
Gregory C. Keating
Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive. In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come …
The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating
The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating
Gregory C. Keating
The asbestos crisis pushed our adjudicative institutions to the brink of failure, and exposed the extraordinary difficulty of managing mass tort litigation on a scale so vast. Even so, there is much to praise in the efforts of courts to come to grips with this, the greatest of all mass accidents. The asbestos cases are an heroic judicial effort to construct a form of enterprise liability, one tailored to the distinctive features of a mass disaster of unprecedented scope and duration. Asbestos is the greatest of modern mass accidents. It is the expression of a nightmarishly well-organized world of systematically …