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

Witt & Tani, TCPI 8. Duty Problem
8. Immunity Reconsidered
If one thinks about all the areas in which common law immunities, limited common law
duties, or special doctrines such as the rule of pure economic loss or the doctrines of negligent
infliction of emotional distress, it can sometimes seem as if the negligence action is hemmed in on
all sides. At common law, injury victims found immunity doctrines blocking their path if they
were injured at home, at work, by the government, or when receiving medical care from charitable
hospitals. Entire categories of harm were unrecoverable.
Fifty years ago, it seemed apparent that the historical trend was toward abolishing limited
duties and immunities. See Robert Rabin, Tort Law in Transition: Tracing the Patterns of
Sociological Change, 23 VAL. U. L. REV. 1, 26 (1988). Beginning in the 1980s, however, that
trend slowed and even reversed. Today, the trend in the area of limited duties and immunities
seems to some considerably less certain.
At the very same time, in the past fifty years, tort law has witnessed the important but
uncertain expansion of a very different doctrine, one that seems to expand liability rather than
contracting it: liability without fault.
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