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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
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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