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13

The Elusive Element of Duty: Two Principles in Search of  an Exception

INTRODUCTION

It is hornbook law that the plaintiff in a negligence case must prove four elements in order to recover: duty, breach, causation, and damages. Even if the defendant was negligent, and that negligence caused injury to the plaintiff, the defendant will not be liable unless he also owed the plaintiff a duty of care. This chapter addresses the elusive element of duty.

It hardly seems that this should be a problem: Don't we all owe a duty to everyone not to injure them by our own negligence? Such a universal duty of care would simplify negligence law considerably: It would effectively eliminate the duty element from the plaintiff's burden of proof, since a duty of care would always exist. Although such a broad rule is tempting, courts have not been willing to impose a universal duty of due care. Courts have often refused to hold defendants liable, even though they have caused clearly foreseeable harm to the plaintiff. Here, for example, are some situations in which many courts would deny recovery even though harm was to be anticipated from the defendant's conduct.

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