Document Type
Article
Publication Date
1992
Publication Information
25 Ind. L. Rev. 1419 (1991-1992)
Abstract
Summarizing the developments in Indiana tort law is a daunting, perhaps impossible task. In more than 115 reported opinions, state and federal courts wrestled with issues, many of them issues of first impression, which ranged across the spectrum of tort law. A constant thread runs through many of these cases. The thread is duty. Time and again during the past year, Indiana courts were required to decide whether a particular set of facts gave rise to a duty of care by the defendant or an obligation of avoidance by the plaintiff.
Some of the cases involved novel legal duties, while others gave modern answers to time-worn problems. Whatever the ultimate result, one aspect of the decisions stands out: the courts did not resolve the issue of duty along any consistent view of the notion of obligation and responsibility. Although the Indiana Supreme Court purported to announce a comprehensive new test for the determination of duty during 1991, Indiana does not in fact have a single, coherent theory of duty. Rather, it has four competing models: a model of duty based on relationship, a model based on foreseeability of harm, a model based on public policy, and a model based on community values.
Part I of this Article begins the exploration of this theme by describing Indiana's new test for duty. Part II examines three sets of cases decided by the Indiana Supreme Court and demonstrates that the four models of duty remain entrenched despite this new test. Part III applies these models to duty decisions in the areas of physical, psychic, and economic torts, as well as to the plaintiff's own obligation of due care, and proves that the reliance on the disparate models has frustrated any coherent pattern of doctrinal development in the area of duty. Part IV provides some tentative conclusions about the general direction of duty analysis in Indiana.
Recommended Citation
Jay Tidmarsh,
Tort Law: The Languages of Duty,
25 Ind. L. Rev. 1419 (1991-1992).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/687
Comments
Reprinted with permission of Indiana Law Review.