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., theauthor analyzes the “no duty” doctrine and its improper use in recent tort decisions. Heargues that too many US appellate courts are misapplying the “no duty” doctrine by usingit in situations in which they are actually deciding whether there has been a breach of theduty of care. The author places recent applications of the “no duty” doctrine in the contextof recommendations made by the American Law Institute, and suggests that the case lawwould benefit if the courts reflected upon the relative roles of judges and juries and followedthe guidance of the Restatement (Third) of Torts.