Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
civilization, rather than the individual plaintiff.
John Goldberg & Benjamin Zipursky, The Moral of MacPherson 146 U. PA. L. REV. 1733,
1810-11 (1998)
[Prosser] insists that conceptual categories must be incoherent unless they are tied
to specific utilitarian goals, such as deterrence, compensation or administrative ease.
Prosser was not able to recognize the possibility of a principle that links the
justification for imposing a duty to compensate a plaintiff with the question of
whether the defendant had actually breached a duty to the plaintiff. This principle
treats liability-imposition as having a normative structure and significance apart
from its instrumental value.
What is the nub of the disagreement between Prosser, on the one hand, and Goldberg and
Zipursky, on the other?
When mid-twentieth-century torts jurist William Prosser—the long-time dean at the
University of California at Berkeley—argued that the duty stage of the tort analysis was
redundant, his critique represented the culmination of legal realists’ functional analysis of tort law
in the early twentieth century. The same generation of lawyers that critiqued such traditional
doctrinal notions as causation and fault made “duty” a principal target of their functionalist
project. A half-century later, their view continues to be influential. The Third Restatement, for
example, recommends that typical torts cases ought not involve a separate duty analysis at all;
duty or modified duty determinations, the Third Restatement urges, should be limited to
“exceptional cases, when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.
HARM § 7(b), cmt. a (2010).
Nonetheless, the duty concept remains a separate analytic stage in virtually every
American jurisdiction. And of late, distinguished jurists like Harvard’s Goldberg and Fordham’s
Zipursky (authors of the excerpt above) have defended the duty analysis and countered Prosser’s
long-standing realist argument against it. Defenders of the duty principle insist that the idea of
particular relational duties is central to the normative structure of tort law. Rejecting the realists’
instrumental or functional ideas of duty, scholars like Goldberg and Zipursky argue that duty
embodies the essential bilateral structure of tort law’s duties: duties that do not run to the whole
world, but that run (as Cardozo’s Palsgraf opinion suggested) to particular people and perhaps
even exclusively for certain wrongfully imposed risks. Functional theories of tort law, on this
view, do not capture what tort law does—namely, require the repair of losses because they are
wrongful with respect to certain people. The duty element of the analysis (according to its
defenders, anyway) focuses the torts inquiry on the defendant’s wrongfulness and on the
significance of that wrongfulness for the plaintiff’s injuries and for whether defendant has an
obligation to repair those injuries. See generally Benjamin C. Zipursky, Civil Recourse, Not
Corrective Justice, 91 GEO. L. REV. 695, 699-709 (2003).
Keep the debate in mind as you read the cases. Ask yourself the question: Who has the
better of the argument over duty in American tort law?
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