New York University Public Law and Legal Theory Working Papers

Document Type



44 Wake Forest Law Review 899 (2009)


One whose affirmative conduct creates a foreseeable risk of physical harm is subject to the ordinary duty to exercise reasonable care with respect to those who might be foreseeably harmed by the conduct. In exceptional cases, this ordinary duty has been limited by judges as a matter of law. Judges have invoked a variety of public-policy factors to support such a limitation of liability, but have not adequately explained the nature of the justification. Consequently, the Restatement (Third) of Torts: Liability for Physical Harms recognizes that courts can limit duty when “an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases,” and then instructs the court to clearly explain why liability should be limited. The Restatement (Third)’s treatment of duty has been sharply criticized for adopting a brand of instrumentalism that is inconsistent with the substantive nature of a tort duty rooted in individual obligations. On this view, a court’s reliance on “public policy” is an economic exercise of cost-benefit analysis that has no place in a rights-based system of private law. Contrary to this view, this article shows that a policy-based limitation of duty does not necessarily entail the type of economic or utilitarian calculus that many find to be controversial. Social value can limit duty within a rights-based tort system as well. In addition to the private interests at stake in the lawsuit, the resolution of a tort claim can affect other interests. Insofar as these interests have normative value that justifies the individual tort right and its correlative duty, they must be recognized by the court as a matter of equality. Insofar as these third-party interests are not all adequately represented by the private litigants, this social value must be accounted for by the judge in the determination of duty. To illustrate, the article reviews cases in which courts have used public-policy factors to determine whether social hosts should incur liability for drunk-driving accidents caused by their inebriated guests after leaving the event. While divided over the issue of whether a social host owes a duty to the third-party accident victim, courts nevertheless evaluate the duty by reference to a common set of social values rooted in the normative concern of individual autonomy. The autonomy interests implicated by the case at hand easily justify the duty, but courts then evaluate whether the duty would have uncertain application in other cases that would unduly restrict the autonomy of others in the community—the type of social-value inquiry that is appropriate in a rights-based tort system. This formulation of the social-value inquiry also has implications for the judge-jury issue, another aspect of the Restatement (Third) approach that has been sharply criticized. For certain types of cases, the social-value inquiry can depend on the facts of the case at hand. These duty determinations are still appropriately made by judges as a matter of law, however, because the court is evaluating the particular claim by reference to categorical (or social) values not otherwise implicated by the other elements of the tort claim. Even though these rulings rely on case-specific facts, the determination is nevertheless categorical in the manner required by the Restatement (Third). The social-value inquiry simply encompasses the full set of legally valued interests that would be affected by the duty and are not otherwise adequately addressed by the tort claim, a policy—indeed, a principle—that must be recognized by a tort system committed to the equal treatment of individuals in the community.

Date of Authorship for this Version