Date: Fri, 16 Jun 2006 10:26:03 -0400

From: David Cheifetz

Subject: Do duties of care ever die?

Adam,

A defeasible duty?

At first glance, I don't see why one couldn't define a duty that way (in principle). I've not thought through what the consequences might be if one did - reductio ad absurdum etc - to see if the first glance is wrong or at least problematic because of the consequences. Whether there's ever been a case that, in fact, had the duty analyzed that way, even if the judge didn't realize it, is also something that doesn't pop up immediately.

My immediate feeling is that saying the duty is ended amounts to also saying that the legal causation connection between initial duty and misconduct and future result will be broken by the "defeasing" event, so it's better left as a legal causation question. By legal causation, I mean the proximate cause (scope of liability, remoteness) inquiry, not the factual cause inquiry.

Anyway, time to go back to billable work.

Best,

David Cheifetz

-----Original Message-----
From: Adam Kramer
Sent: June 16, 2006 9:12 AM
Subject: RE: ODG: Do duties of care ever die?

Dear all,

Perhaps I should rephrase the ‘death of duties of care’ question, although I fear plain English is about to go out of the window:

Is it good law (i.e. does the law allow a court to determine that) the class of persons to whom a duty is owed is delimited by factors that are contingent on the occurrence of subsequent events. I.e. could a court find that a manufacturer owed a duty to all who come into contact with a particular dangerous product unless and until a particular event (a type of inspection, foolish act of the claimant or a third party etc) occurs in the future; and that the manufacturer owes no duty to those who come into contact with the dangerous article after that particular event (if the event occurs, which it may never do). I would say that such matters are best left to causation etc., and that duties cannot be limited in this way.

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