The Cleaver, the Violin, and the Scalpel: Duty and the Restatement (Third) of Torts

This Article takes issue with the approach taken by the proposed final draft of the Restatement (Third) of Torts that insists that noduty or limited duty rules should be formulated only when a court can promulgate clear, categorical, bright-line rules that are applicable to a general class of cases. In this Article I demonstrate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow courts to invade the province of juries whose task it is to apply law to facts. I contend that the kind of policy factors that give rise to no-duty determinations are very different than those a jury considers when deciding whether a defendant's conduct was negligent.