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37 Ind. L. Rev. 1 (2003-2004)
A Tangled Webb - Reexamining the Role of Duty in Indiana Negligence Actions

handle is hein.journals/indilr37 and id is 11 raw text is: Indiana Law Review Volume 37 2003 Number 1 ARTICLES A TANGLED WEBB-REEXAMINING THE ROLE OF DUTY IN INDIANA NEGLIGENCE ACTIONS HONORABLE THEODORE R. BOEHM* INTRODUCTION The four elements of a negligence action have long been recited by courts in Indiana and elsewhere as duty, breach, causation and harm. The American Law Institute's current consideration of the Restatement (Third) of Torts has produced a vigorous national debate over the roles of duty and causation in a negligence action.' Indiana's causation doctrine is relatively conventional, and although it presents its own set of problems, in general these are not unique to Indiana and are beyond the scope of this article except as duty and proximate cause relate to each other.2 Duty, on the other hand, has a unique Indiana history that illuminates and in my view helps resolve the national debate. It alone is the subject of this article. In this article I offer my view on the reasons courts often inappropriately speak in terms of duty when the issue really is something else. I believe negligence actions are best understood by recognizing that every actor has an obligation to behave reasonably. This approach is not designed either to expand or to constrict liability. Rather it focuses on what I believe to be the central legal issue in a negligence claim: are there any factors--usually dubbed policy considerations-that preclude this claimant as a matter of law from recovering * Justice, Indiana Supreme Court; A-B., 1960, Brown University; J.D., 1963, Harvard Law School. I would like to thank my law clerks, Michael Limrick, Allison Brown, Mildred Van Volkom, and Paul Jefferson, and my assistant Debra Moss, for their help in preparing this article. 1. See generally Symposium: The John W Wade Conference on the Third Restatement of Torts, 54 VAND. L. REv. 3 (2001). 2. Proximate cause is equally subject to criticism, but for purposes of this article I restrict my comments to the court's role in allowing or denying a claim under the duty rubric. I use causation rather than scope of liability not because I prefer that terminology, but only because it is conventional and avoids distractingly long diversions from the points I seek to make. It seems widely understood that proximate cause embraces both causation in fact and a legal concept variously described as legal cause, foreseeability, scope of liability, etc. Although I agree with those who would abolish the term as confusing to the jury and to analysis by appellate courts, I nevertheless use it as shorthand. The alternative is to fill every discussion of scope of liability with an explication of precisely how the term is used, even though it is irrelevant to the analysis of the court's role in assessing the presence or absence of duty.

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