The Court of Appeals defends  the concept of duty.

An unknown person stole an unlocked Gutierrez truck, collided with Delci’s car, and escaped unidentified. Delci sued it. Gutierrez moved for summary judgment on the grounds that it had no duty to Delci. The trial court granted it.

The Court of Appeals affirms, following Arizona Supreme Court precedent in Schafer, which involved a car stolen from a dealership lot. Delci argued that Schafer was overruled by Gipson (duty not measured by foreseeability). The Court of Appeals agrees that foreseeability can no longer be the test but points out that duty is now based on relationships and that there was no relationship between the parties.

Delci countered that some states have adopted a special rule involving heavy machinery, since its more dangerous and easier to steal. The court say that this rule is based on foreseeable harm and foreseeability is no longer a basis of duty.

Delci then argued the ALI has now announced, in section 7 of an add-on piece to the new Restatement of Torts called Restatement Third, Torts: Liability for Physical and Emotional Harm, “An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Delci apparently argued that Ontiveros said something that “could be interpreted” to mean the same thing; this court says that that case was narrowly based on the obligations of liquor suppliers. In any event, the court rejects section 7 because “it would substantially change Arizona’s longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action.”

Section 7 is headed “duty” but its intention is indeed to eliminate the concept, as its comments make as clear as anything that turgid can. That is what Palsgraf (the source of duty based on foreseeability) and Gipson, in their own ways, went to some length to prevent. This is perhaps the clearest example of the ALI’s recent attempts to make law on the basis of professorial theorizing rather than actually to restate what judges and lawyers and real parties in real controversies have thought appropriate.

(link to opinion)