Negligence has five elements: duty, breach, cause-in-fact, scope of risk, and damages. Logic dictates that courts, lawyers, scholars, and law students should keep them separate. But they consistently fail to do so. Courts continue to conflate or collapse elements; they combine duty and scope of risk and they combine duty and breach. In combining duty and breach courts purport to determine duty based on the facts of the particular case but, in fact, they are really deciding a question of breach-whether the defendant exercised the care of a reasonable person under the circumstances. In conflating duty and breach courts are turning a mixed question of fact and law—breach—into a question of law. Concomitantly, those courts are taking the breach question away from the factfinder—often the jury--and improperly making it a judicial decision. Even Justice Oliver Wendell Holmes, Jr. notoriously combined duty and breach in his writings and in his articulation of the short-lived stop, look, and listen at grade-crossings “rule.” Sadly, Louisiana courts have frequently followed Justice Holmes’ perilous lead and combined duty and breach in a number of significant instances. The most unfortunate line of jurisprudence manifesting this conflation of duty and breach is the Louisiana Supreme Court’s “open and obvious” risk cases. Herein, building on my prior work on separating duty and scope of risk, I review the jurisprudence from Holmes to the Louisiana open and obvious cases to other Louisiana decisions manifesting the same error. I propose that henceforward courts and scholars clearly separate duty and breach thereby properly allocating the breach decision to the factfinder, unless reasonable minds could disagree.


97 Tul. L. Rev. (2022)

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