Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other 'Quaint' Doctrines Can Improve Decisionmaking in Negligence Cases

35 Pages Posted: 23 May 2006

See all articles by John C. P. Goldberg

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law


This Article responds to "Abusing Duty," by Dilan Esper and Gregory Keating. That article decries recent California decisions for too readily invoking the duty element of negligence as a ground for issuing judgments for defendants. In particular, it criticizes courts' reliance on the duty-based doctrine of primary assumption of risk to support matter-of-law rulings against persons injured in the course of recreational activities. It likewise decries their willingness to dismiss negligence suits against property owners on no-duty rationales that reflect an exaggerated concern for ownership rights. Although we agree that many of these decisions are mistaken, we argue that Esper and Keating's analysis of what has gone wrong does not get to the root of the problem.

The fundamental difficulty reflected in these decisions is not simply that courts are too aggressively applying certain no-duty doctrines, but that they are operating under a misconception of what the concept of duty means within negligence law, a misconception that, ironically, is traceable to the work of the liberal California Supreme Court of the 1960s. That Court, purportedly in the name of progress, rejected the idea that the duty element of negligence calls for a circumscribed inquiry into whether a given actor is obligated to conduct himself with reasonable care for certain interests of certain others, and instead embraced Prosser's notion that duty is a cipher that means whatever courts need it to mean in order to achieve the right aggregate levels of negligence liability. In short, these no-duty decisions go astray because modern deconstructions of the concept of duty invite lawless judicial discretion; duty is abused because it is being asked to do too much, and to do so in a manner that is unconstrained.

We argue that decisionmaking in this area can only be improved if the California courts reject the idea that duty is a judicial wildcard and, in turn, accept that duty and various related tort concepts and doctrines - including implied assumption of risk - have meanings that can function to channel judicial discretion and can moderate the extent to which judges' political commitments determine the content of the law of negligence. Permitting other principles within negligence law to serve this moderating role in shaping doctrine provides the best hope of shielding duty from further abuse.

Keywords: Assumption of Risk, California Supreme Court, Duty, Emergency Doctrine, Emotional Distress, Premises Liability, Recreational Activities, Dillon v. Legg, KFC v. Superior Court, Knight v. Jewett, Ornelas v. Randolph, Rowland v. Christian

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other 'Quaint' Doctrines Can Improve Decisionmaking in Negligence Cases. Southern California Law Review, Vol. 79, p. 329, 2006, Vanderbilt Public Law Research Paper No. 06-10, Fordham Law Legal Studies Research Paper No. 909548, Available at SSRN:

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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