The Duty of Care as a Duty in Rem

Abstract

Over the course of the twentieth century, the common law has lessened the duty of care—the threshold element of negligence liability — to a "frustratingly inconsistent, unfocused, and often nonsensical" doctrine that is applied in multiple ways. Underlying this confusion and serving as a topic of extensive judicial and scholarly debate is the question of how the relational dynamic between the plaintiff and the defendant at the time of the alleged tort bears on the issue of whether the defendant owed the plaintiff a duty of care.

In examining recent academic debate on that question that has surrounded the drafting and publication of The Restatement (Third) of Torts, this paper defends the Third Restatement's "world-at-large" view of the duty of care. It does so on the basis of a theory that conceptualizes the duty of care as a duty in rem — an obligation owed to people in general (rather than to some defined class) by virtue of every person’s ownership of some particular "thing." The theory that this paper offers reifies personal freedom — the liberty every person has to act and use his property with reasonable care in the pursuit of his interests — to challenge criticisms of the Third Restatement that suggest that a "duty to the world" entails a nihilistic view that offers no substantive concept of obligation and renders duty a mere instrument for issuing policy driven decisions. In challenging these criticisms, this paper argues that properly conceived, a duty of care owed to the "world at large" is an obligation owed to people by virtue of the exclusive and moral dominion every person is entitled to exercise over his personal freedom. Moreover, by measuring the scope of the duty of care on the basis of the "thing" of personal freedom, an in rem conception optimizes the information costs associated with establishing rights and duties between private parties so as to best facilitate the arm's-length social interactions with which negligence law is primarily concerned. Understood this way, the duty of care is a coherent moral and functional principle of law for governing the vast and anonymous network of people who necessarily impose risks of physical harm on each other in pursuing their various ends.

Keywords: torts, tort theory, negligence, duty, reasonable care, foreseeability, in rem, in personam, information costs, res, relationality, personal freedom, Palsgraf, Restatement (Third) of Torts