Date: Fri, 16 Jun 2006 07:23:20 -0400

From: David Cheifetz

Subject: Do duties of care ever die?

Adam,

I'm inclined to agree with Neil. The way we define the concepts means that the fact of the existence of the duty, assuming that it existed at the time of the act or omission, can't be erased from history by subsequent events except in the "legal" sense I've described - that the law changes after the events and declares that no duty existed.

Your question couldn't have been posed under the traditional declaratory model - Blackstone, Commentaries on the Laws of England, Book 1, para. 70: “For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law” - because the metaphysical conceit was that a subsequent change in the law meant that the duty never existed.

Now? It's a consequences question, I think. Time, for law, has one direction. (No HG Wells time machines, etc.)

I still want to let my subconscious play with the question, though, before I saw the limb off completely.

Best,

David.

-----Original Message-----
From: Adam Kramer
Sent: June 16, 2006 6:55 AM
Subject: RE: ODG: Do duties of care ever die?

The question is abstract for two reasons. One is that I want to be able to make the general (and so abstract) observation that duties of care do not terminate once they’re up and running to argue in a particular case that this does not happen. The other, more important, reason is that it all relates to a live case and one never knows who receives these emails. (It will have to) suffice to say that the case does relate to manufacturer or construction professional liability for physical harm or personal injury, and the particular argument I’m trying to face relates to intermediate examinations (actual examination/discovery, opportunities to examine/discover, anticipated examination/discovery) of the product or building terminating an extant duty in a situation where the chain of causation remains unbroken. (Of course one issue, touched upon by Neil, is whether the duty is owed from day one to users who have not yet encountered the product/building or are not even born, or whether it arises on contact with/use of the product or building. Is it an existing duty to each and every, or a general duty that crystallizes to each and every, and could these various types of examination prevent the duty to some arising?)

So, is it right (as I thought and Neil seems to agree) that the general proposition (extant duties never die) stands? And can it be challenged in particular in the specific context identified above?

As to Neil’s point about what happens when the beams start to rot etc, I agree that the chain of causation may be broken, but in addition it is often a matter of simple factual causation: once enough time has passed that a well-designed beam would also be rotten, it can’t be said that but for the carelessly caused defect the damage would not have arisen.

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