Rethinking Tort Doctrine: Visions of a Restatement (Fourth) of Torts

Abstract

Tort doctrine is both unduly complex and insufficiently developed. Here are some examples. Intentional wrongdoing and product injuries are now treated as discrete areas of the law, rather than being folded into the basic fields of fault-based liability and strict liability. General criteria for determining when one does or doesn't owe another a "duty" in tort are underdeveloped. Inadequate attention is given to whether a party should merely warn of a danger or instead take steps to reduce or eliminate that danger. The law of causation deals with the very different purposes served by the requirements of historical connection and proximate connection. This Article envisions a Restatement (Fourth) of Torts that would address all of these shortcomings and more. This vision is presented as a further step in the process of rethinking tort doctrine begun by UCLA Professor Gary Schwartz through his work on the Restatement of Torts (Third) in which he was engaged at the time of his death.

34_50UCLALRev5852002-2003
By uclalaw