Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
facts of any given relationship between a plaintiff and a defendant. John C.P. Goldberg &
Benjamin Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance,
and Other “Quaint” Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. CAL. L.
REV. 329, 340 (2006). The Third Restatement sides with the categorical view in those exceptional
instances in which (as the Restatement authors see it) a separate duty analysis is appropriate.
RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §7, cmt. I (2010).
Another debate concerns whether foreseeability should be a component of duty. Scholars
who emphasize the significance of the duty inquiry, even if as an inquiry to be made in unusual
boundary-policing cases, argue that duty determination must include consideration of the
foreseeability of a plaintiff’s injury. Esper & Keating, supra, at 327. By contrast, those who
believe that duty is redundant adopt the view that breach and proximate cause already
accommodate considerations of foreseeability such that they need not reappear in the duty
analysis. See W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. CAL. L. REV. 671, 722-
26; see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §7, cmt. j (2010)
(recommending that courts not use foreseeability in duty determinations and limit no-duty rulings
to articulated policy or principle).
E. Pure Economic Loss
Courts have often announced that pure economic loss, much like pure emotional distress,
is not recoverable in actions for negligence. Consider the following case, which both states the
rule and at least in part questions it:
People Express Airlines, Inc. v. Consolidated Rail Corporation, 100 N.J. 246 (1985)
HANDLER J.
This appeal presents a question that has not previously been directly considered: whether a
defendant’s negligent conduct that interferes with a plaintiff’s business resulting in purely
economic losses, unaccompanied by property damage or personal injury, is compensable in tort. .
. .
Because of the posture of the case—an appeal taken from the grant of summary judgment
for the defendant railroad, subsequently reversed by the Appellate Division—we must accept
plaintiff’s version of the facts as alleged. The facts are straight-forward.
On July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated
Rail Corporation (Conrail) when ethylene oxide manufactured by defendant BASF Wyandotte
Company (BASF) escaped from a tank car, punctured during a “coupling” operation with another
rail car, and ignited. The tank car was owned by defendant Union Tank Car Company (Union
Car) and was leased to defendant BASF.
The plaintiff asserted at oral argument that at least some of the defendants were aware
from prior experiences that ethylene oxide is a highly volatile substance; further, that emergency
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