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- Title
TORT APPENDECTOMY: A HISTORICAL APPROACH TO REMOVING THE VESTIGIAL RELATIONSHIP REQUIREMENT FOR DUTY.
- Authors
Talbot, Bryce W.
- Abstract
The duty element of a negligence action under many states' case law has seen a variety Of interpretations and constructions. Perhaps the most common, and puzzling, of these is that a duty must arise based on some relationship between the plaintiff and defendant. This Article employs a novel historical analysis to argue that the reliance on relationships is a vestige of the old-English writ system that should not be retained. Further analysis confirms that the duty concept in the United States started as a general duty from all to all. But then activists, scholars, and judges began implementing a more limited, narrow duty (more similar to proximate cause) for policy reasons they believed in. Since then, courts have struggled to define and implement duty as an element Of tort law. Following this analysis, this Article then presents novel case study research on how courts have variously tried to define duty, and how a historically-accurate definition of duty would lead to more consistent and proper results, resolving confusion among the lower courts and preserving the proper role of the jury in, factual determinations.
- Subjects
NEGLIGENCE; DUTY; PLAINTIFFS; DEFENDANTS; TORTS; LAW
- Publication
University of Toledo Law Review, 2023, Vol 54, Issue 2, p211
- ISSN
0042-0190
- Publication type
Article