MISUSING THE "NO DUTY" DOCTRINE IN TORT DECISIONS: FOLLOWING THE RESTATEMENT (THIRD) OF TORTS WOULD YIELD BETTER DECISIONS

Focusing on a recent California Supreme Court decision, Verdugo v. Target Corp., the author analyzes the "no duty" doctrine and its improper use in recent tort decisions. He argues that too many US appellate courts are misapplying the "no duty" doctrine by using it in situations in which they are actually deciding whether there has been a breach of the duty of care. The author places recent applications of the "no duty" doctrine in the context of recommendations made by the American Law Institute, and suggests that the case law would benefit if the courts reflected upon the relative roles of judges and juries and followed the guidance of the Restatement (Third) of Torts.