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

Witt & Tani, TCPI 8. Duty Problem
injuries, and relational harms are highly constrained; and that any number of unusual or
unexpected harms are held to be outside an actor’s obligations.
In addition to these doctrines, there are a number of long-standing immunity doctrines in
the common law that bar suits altogether on the basis of the status of the defendant. Some of them
have been substantially cut back. But many of them are still robust.
The result is that in a very large number of social settings, tort defendants are protected by
a limited- or no-duty rule or an immunity doctrine. As these protections multiply, it becomes
unclear what the general rule of American tort law is. Is it a general rule of liability for harms
caused by unreasonable acts, with specific exceptions? Or is it instead a general rule of no
liability, with special exceptions for certain harms caused by unreasonable acts?
1. Intrafamilial Immunities
Traditionally, under the common law of coverture, courts prevented suits between spouses
because of their supposed metaphysical unity or the husband’s authority. As the English jurist
William Blackstone put it, “husband and wife” were “one person in law,” and “the very being or
legal existence of the woman” was “suspended during the marriage” or “incorporated and
consolidated into that of the husband.” Blackstone, Commentaries on the Laws of England, bk. 1,
ch. 15 (1765). In the nineteenth century, the Married Woman’s Property Acts enacted in most
states allowed wives to bring actions against their husbands for property torts, such as trespass and
conversion. But courts continued to enforce spousal immunity for personal torts because of
concerns for marital harmony or fraud and collusion. See Carl Tobias, Interspousal Tort
Immunity in America, 23 GA. L. REV. 359, 441 (1989). Indeed, on one account, courts adopted
wider and wider ideas about marital privacy that effectively immunized domestic abusers (mostly
male) from damages. See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and
Privacy, 105 YALE L.J. 2117 (1996). Today, most states have rejected these rationales and
abrogated spousal immunity, at least as a doctrinal matter. See, e.g., Leach v. Leach, 227 Ark.
599 (1957). The Second Restatement adopts this approach. RESTATEMENT (SECOND) OF TORTS §
895F (1979).
Similarly, most states have abrogated traditional parental immunity, either doing so
entirely (Gibson v. Gibson, 3 Cal.3d 914 (1971)), or at least cutting back significantly on the
immunity of parents for torts to their children. States adopting something less than complete
abolition of the immunity typically allow a child’s tort lawsuit except those arising out of acts of
parental authority or discretionary parental responsibility. See Goller v. White, 20 Wis. 2d 402
(Wis. 1963). Some states persist with robust versions of parental immunity, applying it even as
against non-custodial parents. See Ascuitto v. Farricielli, 711 A.2d 708 (Conn. 1998).
Despite doctrinal liberalization, intrafamilial tort suits continue to face serious practical
obstacles. Most tort suits are viable because some form of liability insurance offers the hope that
there will be assets to collect in the event of success. But notwithstanding these doctrinal
changes, many insurance companies write exclusions of intrafamilial claims into their insurance
policies. Why do insurance companies write such exclusions into their policies? The worry is
collusive suits in which parent and child collude to extract money from the insurer.
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