Copyright (c) 2009 Wake Forest Law Review Association, Inc.
Wake Forest Law Review
THIRD RESTATEMENT OF TORTS: ISSUE ONE: ARTICLE: SOCIAL VALUE AS A POLICY-BASED LIMITATION OF THE ORDINARY DUTY TO EXERCISE REASONABLE CARE
WAKE FOREST LAW REVIEW
44 Wake Forest L. Rev. 899
Mark A. Geistfeld*
After the writ system was abolished in the mid-nineteenth century, tort law became formulated as a substantive field of liability. The jurisprudence of the time sought to distill general principles from the mass of common-law cases and from those principles derive an internally consistent body of laws. By identifying general principles, courts and scholars showed how the narrowly defined duties of care that had been recognized by the writ system, which were typically defined in terms of status, occupation, and so on, could be reconceptualized in terms of "a universal duty of care owed by persons to their neighbors" growing out of "the civil obligations of those who lived in society." 1 Courts limited the universal duty by the requirement of foreseeability, thereby creating the ordinary duty that continues to be widely recognized today: one whose affirmative conduct creates a foreseeable risk of physical harm has a duty to exercise reasonable care with respect to those who might be foreseeably harmed by the conduct. 2
Having transformed the fragmented, individualized rules of the writ system into a general rule of negligence liability, courts then had to confront the issue of whether many types of unreasonable conduct should be immunized from the newly adopted standard of tort liability. Under the writ system, the characteristic legal rule was not one of negligence or strict liability, but rather one of immunity from liability. 3 Insofar as an immunity had been justified by concerns of public policy, that justification became ...
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