Indiana Law Review


Indiana Laiiv Revieir
Volume 23 1990 Number 4

The Statutory Duty Action in Tort: A Statutory/Common
Law Hybrid

Caroline Forell*

Three learned judges are presented with the following set of facts

and asked to provide the appropriate tort analysis. A young woman
was badly injured when she fell down the stairs in her rented home
because the stair raiUng was defective. It is undisputed that her landlord's
failure to repair the defective railing violated a statute requiring landlords

to maintain their rental properties in good repair. The tenant sues the
landlord for injuries.

All three judges solemnly chant in unison: ''Caveat lessee." They

are right about this; the common law rule prevents tenants from suing
their landlords for personal injuries suffered on the premises.^

Judge Number One concludes: 'The statute does not expressly create
a tort action; thus, none exists and the landlord cannot be sued.'*^

Judge Number Two scrutinizes the statute's penumbras and explains:
**When the legislature enacted this statute, they intended to provide a

civil remedy. Therefore, the injured tenant has an impHed tort action."^

Judge Number Three concurs with Number Two that a tort action
exists, but appHes a common law, rather than a statutory, analysis by
asserting: **This was a clear case of negligence per se.""*

* Associate Professor of Law, University of Oregon; B.A., University of Iowa,

1973; J.D., University of Iowa, 1978. Thanks to Professor Leslie Harris for a critique

of an early draft. Nate Garvis, Oregon class of 1990, supplied valuable research assistance.

This Article was supported and sponsored in part by a summer research stipend from

the University of Oregon,

1. Love, Landlord's Liability for Defective Premises: Caveat Lessee, Negligence,

or Strict Liability, 1975 Wis. L. Rev. 19, 29; Morris, The Role of Criminal Statutes in

Negligence Actions, A9 Colum. L. Rev. 21, 23 (1949).

2. See, e.g., Johnson v. Carter, 218 Iowa 587, 255 N.W. 864, 866-67 (1934);

Richmond v. Warren Inst, of Sav., 307 Mass. 483, 30 N.E.2d 407 (1940).

3. See, e.g., Mangan v. F.C. Pilgrim & Co., 336 N.E.2d 374, 379 (111. 1975);
Humbert v. Sellers, 300 Or. 113, 708 P.2d 344 (1985).

4. See, e.g., Morningstar v. Strich, 326 Mich. 541, 40 N.W.2d 719, 721 (1950).

781



782 INDIANA LAW REVIEW [Vol. 23:781

This fact pattern is representative of the situations that this Article

analyzes. In these situations, the defendant has breached a statutory

duty of care in the process of injuring the plaintiff, and the following

criteria are met:

1. The statute creating the duty is silent on whether a tort action
should be provided for breach of the duty; and

2. Either the courts have not previously decided whether a common
law tort action should be provided or the courts, without considering

this statutory duty, have refused to provide such an action.

In describing these statutory duty actions,^ Judge Number One's
decision addressed the wrong issue. Although the legislature did not
provide a tort action, the correct issue is whether, taking the statutory

duty into account, the court should change the common law rule.
Similarly, Judge Number Two was incorrect because legislatures, when
enacting criminal or regulatory statutes, usually do not address the

question of civil liability in any determinable way.^ Judge Number Three
was incorrect because negligence per se is a doctrine which modifies an

existing common law negligence action.^ Because in these situations there
was no preexisting common law action, the creation of a new tort action
based on a statutory duty is not negligence per se. Negligence per se
terminology is particularly misleading where the court previously rejected

a common law negligence action on similar facts. By creating a new
tort action in such cases, the court overrules rather than supports previous

case law.

Statutory duty cases are hybrids involving both the legislative and

judicial branches.* The three examples introducing this Article highlight
the need for a critical evaluation of statutory duties. These analyses

typify how courts treat statutory duties.

5. The closest counterpart to these actions is the implied right of action derived

from federal statutes. In state courts, duties derived from statutes are also involved in a

much larger category of cases, those which are described as negligence per se. See infra
note 7 and accompanying text.

6. See, e.g., Buckley, Liability in Tort for Breach of Statutory Duty, 100 Law
Q. 204, 207 (1984); Forell, The Interrelationship of Statutes and Tort Actions, 66 Or.
L. Rev. 219, 254 (1987); Thayer, Public Wrong and Private Action, 27 Harv. L. Rev.
317, 320 (1914).

7. See, e.g., Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37 (Iowa 1982);
W. Prosser & W. Keeton, On Torts 222 (5th ed. 1984).

8. See Keeton, Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463,
473 (1962):

In one respect, however, tort law has depended heavily on appUcations of statutes

as a guide to civil decisions within the context of negligence per se and related

doctrines. This development demonstrates that the legal system is not confronted

with an either-or choice between decisional and statutory creativity for solution

of emerging problems.



1990] STATUTORY DUTY ACTION 783

A combination of the twentieth century's '*orgy of statute making"^
and the Utigation explosion has resulted in a large number of statutory
duty cases. Regardless of whether cases involved the Uability of landlords,

dramshop operators/^ poUce officers,'' private hospitals,'^ dog owners,'^
drivers who failed to render aid,"* or municipalities,'^ state courts con-
sistently fail to ask, much less answer, the right questions. Most fun-
damentally, where there is no evidence of legislative intent to create a

tort action, but there is an applicable statutory duty, should the court

exercise its common law powers and provide a new tort action based
on the statutory duty? If the answer to this question is yes, then the

court must consider additional issues: the elements of the new tort action;
and which of those elements the legislature has determined or the judge

or jury should determine.

The few commentators writing about statutory duties in the state

court context for the most part have also ignored these issues.'^ In

contrast, these issues have been subjects of scholarly debate in the federal

context'^ and in other common law countries such as England'^ and
Canada.'^ Nevertheless, the confusion so evident at the state level is

9. G. GiLMORE, The Ages of American Law 95 (1977).
10. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); Rong Yao

Zhou V. Jennifer Mall Restaurant, 534 A.2d 1268 (D.C. 1987).
11. See, e.g., Irwin v. City of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984);

Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983).

12. See, e.g., Guerrero v. Copper Queen Hosp., 122 Ariz. 104, 537 P.2d 1329,

1331 (1975); Cain v. Rijken, 300 Or. 706, 717 P.2d 140 (1986).

13. See, e.g., Lange v. Minton, 303 Or. 484, 738 P.2d 199 (1987).

14. See, e.g.. Brooks v. E.J. Willing Transp. Co., 40 Cal. 2d 669, 255 P.2d 802

(1953); Brumfield v. Wofford, 143 W. Va. 332, 102 S.E.2d 103 (1958).
15. Turner v. District of Columbia, 532 A.2d 662 (D.C. 1987).

16. See, e.g.. Comment, Implied Causes of Action in State Courts, 30 Stan. L.

Rev. 1243 (1978) [hereinafter Comment, Implied Causes]; Gamm & Eisberg, The Implied
Rights Doctrine, 41 U. Mo. K.C. L. Rev. 292 (1972) (describing statutory duties as implied

rights of action). See also Love, supra note 1 Oandlord/tenant); Comment, Cain v. Rijken:

Creation of a Statutory Duty of Care to Protect Others from the Tortious Conduct of
Third Parties, 23 Willamette L. Rev. 493 (1987) (hospital liability for outpatient's conduct).

Notable exceptions to this are: Morris, supra note L at 21-27 and Note, The Use of
Criminal Statutes in the Creation of New Torts, 48 Colum. L. Rev. 456 (1948).

17. See, e.g., Ashford, Implied Causes of Action Under Federal Law: Calling the

Court Back to Borak, 79 Nw. U.L. Rev. 227 (1984); Bender, The Powell-Stevens Debates
on Federalism and Separation of Powers, 15 Hastings Const. L.Q. 549 (1988); Frankel,

Implied Rights of Action, 67 Va. L. Rev. 553 (1981); Mowe, Federal Statutes and Implied

Private Actions, 55 Or. L. Rev. 3 (1976); and Note, Implied Private Rights of Action,

123 U. Pa. L. Rev. 1392 (1975).

18. Buckley, supra note 6.

19. See, e.g., Klar, Recent Developments in Canadian Law: Tort Law, 17 Ottawa
L. Rev. 325, 350-53 (1985); Klar, Developments in Tort Law: The 1982-83 Term, 6 S.

Ct. L. Rev. 309, 314-15, 323-24 (1984); Linden, Tort Liability for Criminal Nonfeasance,

44 Can. B. Rev. 25 (1966); Comment, 62 Can. B. Rev. 668 (1984).



784 INDIANA LAW REVIEW [Vol. 23:781

universal; federal courts and courts of other common law countries
continually wrestle with the problems which statutory duties present. ^°

Besides attempting to clarify this confusion, analysis of statutory duties

at the state level has broad implications in areas such as federal implied

rights of action, common law **no duty" defenses^* and, in particular,
negligence per se.

Before thoroughly examining statutory duty actions, the analytical

framework which applies when a statute appears to be relevant to a
tort case must be introduced. ^^ The first issue to resolve is whether the

statute applies to the defendant's conduct. The usual statutory purpose

test is whether the statute was intended to protect persons like the

plaintiff from the risk that resulted in the plaintiff's injury.^^ This is a

focus test.^'* A focused statute is one which was intended to create a
duty which the defendant owed to the plaintiff in the situation upon
which plaintiff's case is based. ^^

If the statute is focused, the second question is whether the legislature

either expressly or implicitly created a tort action. Legislatures occa-

sionally enact statutory torts, such as wrongful death acts.^^ Such express

20. See, e.g., Jett v. Dallas Indep. School Dist., 109 S. Ct. 2702 (1989); Transamerica

Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11 (1979); Cort v. Ash, 422 U.S. 66 (1975);

J.I. Case Co. v. Borak, 377 U.S. 426 (1964); Cunningham v. Moore, 28 D.L.R.3d 277

(Can. 1972); Thornton v. Kirklees Metro. Borough Council, (1979) Q.B. 626.

21. Examples of categorical "no duty" defenses which statutory duties have affected

are: purely economic injury, Adam v. State, 380 N.W.2d 716 (Iowa 1986); purely psychic
injury, Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983); the no duty to rescue

doctrine. Brooks v. E.J. Willing Transp. Co., 40 Cal. 2d 669, 255 P.2d 802 (1953); and

the public duty doctrine, Schear v. Board of County Comm'rs, 687 P.2d 728 (N.M. 1984).

22. See Forell, supra note 6.

23. See Beeman v. Gebler, 86 Or. App. 190, 193 (1987).
Claims based on theories of statutory tort or negligence per se require both an

initial determination that the statute or rule which is the source of the defendant's

duty protects a class of persons of which the plaintiff is a member by proscribing

or requiring certain conduct and that the harm that the defendant has inflicted

is of the type against which the rule is intended to protect.

Id. See also Restatement (Second) of Torts § 874 comment i (1965).
24. See Morris, On Torts 167-72 (2d ed. 1980).
25. Inevitably, the judge's determination of these issues is, in many cases, somewhat

subjective. See, e.g., Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv.

L. Rev. 405, 427 (1989) ("The characterization of legislative purpose is an act of creation

rather than discovery."). See also Moore, Semantics of Judging, 54 S. Calif. L. Rev.

151, 167 (1981).

26. See, e.g.. III. Rev. Stat. ch. 70, para. 1 (1987); N.Y. Est. Powers & Trusts
Law § 5-4.1 (McKinney 1981); Or. Rev. Stat. § 30.020-.070 (1989). The Michigan
legislature expressly created a statutory tort action against a landlord:

(1) When the owner of a dwelling regulated by this act permits unsafe, unsanitary
or unhealthful conditions to exist unabated in any portion of the dwelling . . .



1990] STATUTORY DUTY ACTION 785

Statutory torts are unusual; implied statutory torts are even rarer. Implied

statutory torts may be found by negative implication^^ or because the
text of a criminal or regulatory statute mentioned a civil defense such

as assumption of risk.^^

A focused statute which does not create a statutory tort is an
influencing statute. Such a statute neither provides nor disallows a tort

remedy; however, because it is focused the court should consider whether

changing the existing common law rule would better effectuate the
statute's purpose. The court should examine the appropriateness of using

the statutory duty as a basis for providing a common law tort remedy.
Statutory duty actions, by definition, always involve influencing statutes. ^^

The first section of this Article considers two issues concerning the

roles of the legislature, judge, and jury. First, it examines which branch

of government, the legislature or the judiciary, is the source of statutory

duty actions. Second, it discusses whether a statutory duty should affect

the roles of judge and jury. This Article addresses these issues from the

jurisprudential position that state judges are legitimate lawmakers^° who,

where such condition exists in violation of this act any occupant after notice

to the owner and a failure thereafter to make the necessary corrections shall

have an action against the owner for such damages he has actually suffered as

a consequence of the condition.

Mich. Comp. Laws Ann. § 125.536 (West 1989). Accord Landlord and Tenant Act 1985

§ 8 (England's statutory tort action for tenants' injuries on landlord's premises).

27. See, e.g., Vt. Stat. Ann. tit. 12, § 519 (1973):

(a) A person who knows that another is exposed to grave physical harm shall,
to the extent that the same can be rendered without danger or peril to himself

or without interference with important duties owed to others, give reasonable

assistance to the exposed person unless that assistance or care is being provided

by others.

(b) A person who provides reasonable assistance in compliance with subsection
(a) of this section shall not be liable in civil damages unless his acts constitute

gross negligence or unless he will receive or expects to receive renumeration.

(By negative implication a person who does not provide reasonable assistance

would be liable.)

Id. See also Chartrand v. Coos Bay Tavern, 298 Or. 689, 698 P.2d 513 (1985) (statute

created liability for dramshop operators by negative implication).

28. See Foy, Some Reflections on Legislation, Adjudication, and Implied Private

Actions in State and Federal Courts, 71 Cornell L. Rev. 501, 520 (1986). See, e.g..

Safety Appliance Act, 45 U.S.C. § 7 (1982); Mines and Quarries Act, 1954, Vict, sched.

157 (Eng.); Mines Act, 1958, Vict, sched. 411 (Eng.) (all referring to civil defenses).

For examples of implied statutory prohibitions on tort actions see Jackson Transit

Auth. V. Local Div. 1285, Amalgamated Transit Union, 457 U.S. 15 (1982) (no action

allowed because legislative history expressly indicated that Congress did not intend to

create a federal right of action); Hayman v. Morris, 36 N.Y,S.2d 756 (N.Y. Sup. Ct.
1942).

29. See Restatement (Second) of Torts § 874A comment d (1965).
30. 1 align myself with those legal scholars who beheve that courts make law



786 INDIANA LAW REVIEW [Vol. 23:781

when they make law, should do so openly. ^^ Because our system of
government allows state courts to make law,^^ state court judges are
not compelled to attribute the law they make to the legislature. The
first Section concludes that it is judges who create statutory duty actions,
and that it is appropriate for them to do so openly when they beUeve
that providing such actions best effectuates the purpose of focused

statutes. It further concludes that a court's determination that a statute

is focused should preempt the usual role of the jury as the determiner

instead of merely finding it. See, e.g.. Green, The Thrust of Tort Law Part II: Judicial
Law Making, 64 W. Va. L. Rev. 115 (1962); Keeton, supra note 8; O'Connell, Ruminations
on Oregon Negligence Law, 24 Willamette L. Rev. 385 (1988); Moore, supra note 25,
at 151; Wachtler, Judicial Lawmaking, 65 N.Y.U. L. Rev. 1 (1990).

There is much jurisprudential disagreement over whether common law judges create
law or find law. Compare H. Hart, The Concept of Law (1961) (legal positivism) with
L. Green, Judge and Jury (1930) and O'Connell, Ruminations on Oregon Negligence
Law, 24 Willamette L. Rev. 385, 420 (1988) (legal realism). See also R. Dworkin,

Law's Empire 313-14 (1986) (chain novel analogy). Nevertheless, it is undeniable that

state appellate court decisions regularly change the legal landscape without clear guidance

from other branches of government. Major examples of judicial lawmaking in the area

of tort law are both the creation and the later abolition of parental and spousal immunities

and the development of actions for intentional infliction of emotional distress and strict

products liability.

For an example of how a positivist court deals with its common law lawmaking
powers, see Heino v. Harper, 306 Or. 347, 368-75, 759 P.2d 253, 262-65 (1988) (abolishing

spousal immunity).

31. See Shapiro, In Defense of Judicial Candor, 100 Harv. L. Rev. 731 (1987).

32. The United States Supreme Court has never held that the limits imposed on

federal common lawmaking, see, e.g., Erie R.R. v. Tompkins, 304 U.S. 64 (1938), should
also be applied to state common lawmaking. In fact, federalism has been one of the
bases for limiting federal common lawmaking while allowing state common lawmaking.
See, e.g.. Court v. Ash, 422 U.S. 66 (1975), The Court set out a four-part test for

determining when a right of action should be implied from a federal statute. One of the
factors was whether "the cause of action (was) one traditionally relegated to state law,

in an area basically the concern of the States, so that is would be inappropriate to infer

a cause of action based solely on federal law." Id. at 78.

Commentators agree that state courts can and do make law. "[Cjourts . . . have
made the great bulk of tort law and legislatures have made comparatively very little."
Green, supra note 30, at 117. See also Breitel, The Lawmakers, 65 Colum. L. Rev. 749

(1965); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489

(1954); Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption,
67 Colum. L. Rev. 1024, (1967).

Another distinction between federal judges and many state judges in regard to whether
they are appropriate lawmakers is that federal judges are appointed while many state
judges are elected. Voters hold elected judges accountable for the law they make on

controversial social issues. The most dramatic recent example of this was the 1986 California

election in which three "liberal" judges. Chief Justice Rose Bird, Justice Cruz Reynoso

and Justice Joseph Grodin, were rejected by the voters and removed from the California

Supreme Court after an extremely politicized campaign.



1990] STATUTORY DUTY ACTION 787

of the scope of duty. Instead, the judge's application of the focus test

should determine the scope of the duty as a matter of law.

The second Section of this Article analyzes the different kinds of
statutory duties: those that use the mandatory **shair' or similar language
and those that use the permissive **may" or similar language. This
Article then discusses the two different kinds of influencing statutes
which provide these duties — declaratory statutes which provide no
remedy of any kind, and statutes which contain criminal and admin-
istrative penalties. The final Section of this Article proposes an analysis
for judges to apply when presented with statutory duties which can be
synthesized with present tort doctrine.

I. The Roles of Legislatures, Courts, and Juries in Statutory
Duty Actions

A. The Source of Statutory Duty Actions

Statutory duty actions exist in most jurisdictions. Some courts main-
tain that the source of these actions is legislative;" a few claim that the

source is judicial;^'* and many others equivocate. ^^ Many of the courts

33. See, e.g.. Bob Godfrey Pontiac v. Roloff, 291 Or. 318, 342, 630 P.2d 840,
854 (1981) (Linde, J., concurring); Burnette v. Wahl, 284 Or. 705, 727, 588 P.2d 1105,

1117 (1978) (Linde, J., dissenting); Groves v. Wimborne, (1898) 2 Q.B. 402, 407.

See also Restatement (Second) of Torts § 874A comment g (1965); Atiyah, Common
Law and Statute Law, 48 Mod. L. Rev. 1 (1985). "As all lawyers know, the theory of
the civil action for breach of statutory duty is that the courts find in some legislative

prohibition an implied intention on the part of Parliament to create civil liability for its

breach." Id. at 12-13.

The United States Supreme Court once espoused this view in Texas & Pac. Ry. v.
Rigsby, 241 U.S. 33, 39-40 (1916). However, as noted in Restatement (Second) of Torts

§ 874A comment g (1965):
A special problem exists for the federal courts dealing with federal legislation.
In cases brought before the federal court solely for diversity of citizenship of

parties there is ordinarily no federal "general common law". . . . There is a
doctrine of "federal common law" in areas of distinctly federal concern. . . .
[B]ut in cases of this nature the federal courts have noted that their role is of

narrower scope and more modest than that of state courts engaged in reshaping

common law rules governing relations between private individuals. . . . Predom-
inantly, ... the federal courts address areas of federal private remedy in terms

of carrying forward a federal statute or a provision of the United States

Constitution.

34. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983).

35. See Holdych, The Presumption of Negligence Rule in California: The Common
Law and Evidence Code Section 669, 11 Pac. L.J. 907, 921-23 (1980) (discussing the
California courts' treatment of statutory duty actions).

Most scholars recognize statutory duty actions and attribute their existence to the



788 INDIANA LAW REVIEW [Vol. 23:781

which maintain that statutory duty actions are legislative use one of

three analyses. Some claim that when the legislature enacted a criminal
or declaratory statute, it also intended to impliedly create a tort action. ^^

Other courts assert that unless a common law tort action already existed
or the statute expressly created such a tort action, the legislature intended

that none be aliowed.^^ In addition, a few courts erroneously attribute

to the legislature the ancient equitable doctrine that there is no right

without a remedy.'^

These three bases for claiming that statutory duty actions are leg-

islative creatures are analytically unsound. The first view that, by enacting

a statute which is silent on the issue of civil liability, the legislature

implicitly created a tort action, is not realistic. ^^ It is difficult enough

for legislators to enact statutes at all. The compromises and debate that

judiciary. See, e.g., Buckley, supra note 6, at 232; Forell, supra note 6, at 244; Morris,

supra note 1, at 23-25; Note, The Use of Criminal Statutes, supra note 16, at 459;

Restatement (Second) of Torts § 874A (1965). But see Foy, supra note 28, at 571.
Professor Foy would limit the impact of statutes to situations where a state legislature

intended, either expressly or impliedly, to create a tort action. His justification for this

radical proposal is that state law would then be in line with the present treatment of

federal statutes under the federal implied rights of action doctrine. However, Professor

Foy himself is concerned about the appropriateness of the federal doctrine. Id. at 582-

85.

In contrast to the uncertainty that surrounds statutory duty actions, negligence per

se's existence is well-established and its source in common law is widely accepted. See,
e.g.. Justice Traynor's statement in Clinkscales v. Carver, 136 P.2d 777, 778 (1943):

A statute that provides for a criminal proceeding only does not create a civil
liability; if there is no provision for a remedy by civil action to persons injured

by a breach of the statute it is because the Legislature did not contemplate one.

A suit for damages is based on the theory that the conduct inflicting the injuries
is a common-law tort. . . . The significance of the statute in a civil suit for

negligence lies in its formulation of a standard of conduct that the court adopts

in the determination of such liability. . . . The decision as to what the civil

standard should be rests with the court, and the standard formulated by a

legislative body in a police regulation or criminal statute becomes the standard
to determine civil liability only because the court accepts it.

See also Restatement (Second) of Torts § 874A comment e (1965).
36. See, e.g., Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir. 1947); Amberg

V. Kinley, 214 N.Y. 531, 108 N.E. 830, 831 (1915).

37. See, e.g.. Mack v. Wright, 180 Pa. 472, 36 A. 913 (1897); Queen v. Saskatchewan
Wheat Pool, 1 S.C.R. 205, 143 D.L.R. 9 (1983). At least two commentators agree: Thayer,

supra note 6, at 320 and Williams, The Effect of Penal Legislation in the Law of Tort,
23 Mod. L. Rev. 233, 256 (1960).

38. See, e.g.. Cutler v. Wandsworth Stadium, 1949 A.C. 398, 407, 1949 All E.R.
544, 550. See infra notes 131-33 and accompanying text.

39. "When it is said that civil liability hinges on the meaning of the statute, this
effect is usually 'given' to the legislation by the court and not 'found' therein as claimed."

A. Linden, Canadian Tort Law 188 (3d ed. 1982).

i



1990] STATUTORY DUTY ACTION 789

resulted in most criminal or declaratory legislation reveal that legislators
had enough on their minds in coming up with what they expressly
provided. Usually, the legislature did not resolve the issue of whether

civil liability ought to be allowed unless it expressly addressed this question

in the statute.^

Implying a statutory tort based on a statutory duty is a legal fiction
which directly conflicts with the analysis most courts use when a common
law action exists. It is difficult to understand why some courts assert
that legislatures intend to create implied statutory torts in the statutory

duty area, and also assert that in the negligence per se area it is the
court modifying the existing common law action, rather than the leg-
islature impliedly creating an additional tort action.'**

40. Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn. L. Rev.

361, 364 (1932); J. Fleming, The Law of Torts 114-15 (7th ed. 1987).
Erza Ripley Thayer put it well way back in 1914:
[S]peculation as to unexpressed legislative intent is a dangerous business,

permissible only within narrow Umits; and the tendency to over-indulge it is

responsible for much of the confusion in the law. Proper regard for the legislature
includes the duty both to give effect to its expressed purpose, and also to go

no further. . . . The true attitude of the courts, therefore, is to ascertain the

legislature's expressed intent, to refrain from conjecture as to its unexpressed

intent (except in so far as that inquiry is necessary in order to give effect to

what is expressed), and then to consider the resulting situation in light of the

common law.
Thayer, supra note 6, at 320.

41. Compare Shahtout v. Emco Garbage Co., 298 Or. 598, 601, 695 P.2d 897,
899 (1985) (negligence per se is a common law creature) with Nearing v. Weaver, 205
Or. 702, 711-14, 670 P.2d 137, 143-45 (1983) (statutory duty action is a statutory creature).

Possibly this false distinction made between the source of statutorily influenced actions

where a common law action already exists and where it does not is due, in part, to
confusion about how the federal implied rights of action doctrine relates to state law.
The United States Supreme Court has determined that the federal courts' power to make

law is extremely limited. Federal courts will only create "federal common law in cases
raising issues of uniquely federal concern." Northwest Airlines, Inc. v. Transport Workers

Union of Am., 451 U.S. 77, 95 (1981). Therefore, cases rarely involve a federal statute's

effect on an existing federal common law action, and a federal negligence per se doctrine
has never flourished. Instead, cases in which focused federal statutes are present usually

involve attempts to imply private rights of action from these statutes.

Since 1975, when the Supreme Court decided Cort v. Ash, 422 U.S. 66, however,

the federal implied rights of action doctrine has been strictly limited to the rare cases in

which the court finds clear legislative intent to provide a civil remedy. See Karahalios v.

National Fed'n of Fed. Employees, Local 1263, 109 S. Ct. 1282 (1989); Transamerica

Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11 (1979). In Touche Ross & Co.
V. Redington, 442 U.S. 560, 568 (1979), the Court said: "The central inquiry remains

whether Congress intended to create, either expressly or by implication, a private cause

of action."

Examination of negligence per se reveals that when state courts developed this as a



790 INDIANA LAW REVIEW [Vol. 23:781

Attributing negligence per se to the judiciary, and statutory duty

actions to the legislature, may be partly politics. Where a common law
action already exists, courts have previously made the policy decision
to provide a tort remedy. The presence of a focused statute does not
require courts to decide whether providing a tort remedy in these cir-

cumstances is sound public policy. Courts are willing to attribute the

modification of an existing action to themselves because the change is

not at the level of remedy versus no remedy, but is simply an incremental

change regarding what kind of tort action plaintiff should have.

In contrast, where a common law action was rejected previously or
the question is one of first impression, labeUing a decision to create a

new action **judicial" may be viewed as a judicial policy decision of
substantial dimensions. The court must survey the legal landscape and
determine whether allowing a cause of action will benefit society. In

light of numerous recent charges of judicial activism or, more derog-
atorily, judicial legislating, and other related tort reform issues,"^^ courts

may be reluctant to allow new actions unless they can point to another
entity as the source of these actions. As a result, the courts may choose
to proclaim judicial deference to legislative will in order to more fully

legitimize an unstated judicial poHcy decision."*^

purely common law doctrine, they paid no attention to how federal courts treated focused
statutes. In contrast, the federal implied rights of action analyses appear to have affected

some states' statutory duty analyses. See, e.g., Bob Godfrey Pontiac v. Roloff, 291 Or.

318, 340-41 (1981) (Linde, J., concurring).

See also Gamm & Eisberg, supra note 16, at 292; Comment, Implied Causes, supra
note 16, at 1243.

These state courts have accurately discerned that both statutory duty actions and

federal implied actions involve the presence of focused statutes in situations where no

common law civil action exists. However, these courts fail to comprehend that the widely
accepted authority of state courts, unlike federal courts, to make law distinguishes how
state courts can and should treat statutory duties from the federal courts' necessarily more

limited treatment.

42. See generally P. Huber, Liability: The Legal Revolution and Its Conse-
quences (1988). See also P. Atiyah & R. Summers, Form and Substance in Anglo-
American Law 109 n.30 (1987).

43. See Green, supra note 30, at 123:

[J]udges frequently deny that courts have the power to make law, and have

asserted that the courts' function is to decide a case and declare the law that

controls the decision; that judges may find the law but they do not make law.
How much of this attitude reflects defensive coloration, how much is semantics,
and how much honest belief cannot be known. Sometimes we think we detect
the tongue in cheek; sometimes the protests are so violent that we are reminded

of Shakespeare's lady. But giving the judges credit for a deep sense of innocence

we suggest that no case can be decided without making law. The making of a
decision of necessity means the making of law whether it is the result of statutory

construction or the product of reasoning from precedent or principle.

See also Atiyah & Summers, supra note 42, at 117.



1990] STATUTORY DUTY ACTION 791

Implying statutory torts absent evidence that the legislature intended

to create such actions may be counterproductive. The courts' credibility
will be damaged if critics of judicial activism perceive that the judiciary
is expanding tort liability while hiding behind the fiction of legislative

approval. A more serious side effect of attributing statutory duty actions
to the legislature is that it can lead courts to create causes of action

routinely, without first considering and assessing the consequences that

will flow from the judicial decisions. By attributing tort law changes to
the legislature, courts often avoid discussing either principles or policy

rationales for the changes. It is more principled and intellectually sat-
isfying for courts to acknowledge that they are deciding whether a tort

action should exist. In making this judicial decision, courts should give
appropriate deference to the legislature by treating the presence of a

focused statute as important in determining whether to provide an action.

Courts following this first view of attributing their actions to the

legislature can be criticized for engaging in surreptitious judicial activism.

At the other end of the spectrum, courts deserve criticism for failing

to carry out their common law role in the lawmaking process by following
the second view and asserting that unless a common law tort action
already existed or the statute expressly provided for one the legislature

intended that none be aliowed."^ The assertion that legislatures never

intend to create tort actions unless they expressly provide for them is

not implausible."*^ However, some courts go further than this and view

legislative silence as also implying that the legislature did not want to

change the present common law rule of *'no tort action."'*^ These courts
contend that the legislature impHcitly prohibited judicial creation of a

tort action for violation of the statutory duty and, therefore, barred the

courts from changing the status quo. These claims of legislative pre-

emption and preclusion are legal fictions. There is no evidence that

legislatures, when enacting criminal or regulatory statutes, routinely intend

to prohibit tort actions. "^^ Because statutory duty cases involve influencing

44. See R. Dworkin, Law's Empire 312, 337-41; see also O'Connell, supra note

30, at 419-20.

45. See J. Fleming, The Law of Torts 114 (7th ed. 1987). "But, save in exceptional
cases ... the legislature's silence on the question of civil liability rather points to the

conclusion that it either did not have it in mind or deliberately omitted to provide for

it." Id.

46. See, e.g., Utley v. Hill, 155 Mo. 232, 55 S.W. 1091, 1103 (1900); Plevy v.

Schaedel, 44 N.J. Super. 450, 454-55, 130 A.2d 910, 913 (1957); Burnette v. Wahl, 284

Or. 705, 711, 588 P.2d 1105, 1109 (1978). Accord Thayer, supra note 6, at 320.

47. Justice Hans Linde makes this point in Bob Godfrey Pontiac v. Roloff, 291

Or. 318, 342, 630 P.2d 840, 854 (1981):

To assume that statutory silence means to exclude civil recovery attributes to
the lawmakers a needlessly hostile policy toward making whole the intended



792 INDIANA LAW REVIEW [Vol. 23:781

statutes, the court should decide whether a tort remedy should be allowed.

A few courts offer a third basis for attributing judicial actions to
the legislature when a statute is declaratory and thus provides no express
remedy, or when a statute provides a criminal or administrative penalty,
but in no way provides a remedy to the injured party.'*^ Because statutory
duty cases are by definition ones where no common law action exists,
courts treat the lack of an effective remedy for the plaintiff as an

indication that the legislature intended to impliedly create a tort action.

These courts turn the traditional equitable doctrine of no right without

a remedy into a means for determining legislative intent. Once again,
such courts are using a legal fiction. Although no right without a remedy
may be a sound doctrine, it does not address the issue of the legislature's
intention. Instead, it provides a principled basis for the court to create

a new common law action."*^
Courts which wholly attribute statutory duty actions to the legislature

are refusing to acknowledge that courts are partially responsible for

those actions. Statutes which neither expressly nor by clear implication

create tort actions are not the source of statutory duty actions; they are

also not the source of prohibitions against statutory duty actions. Al-

though such a statute provides an obligation, it does not provide a civil

remedy. Whether a remedy should be provided and, if so, what that

remedy should be are issues courts should determine.

B. The Roles of Judge and Jury in Statutory Duty Actions

The judicial creation of a new tort action based on a statutory duty
presents issues concerning the roles of the legislature, judge, and jury.

beneficiaries of a statutory obligation imposed for their protection. Rather, when

a plaintiff seek damages for injuries of a kind which a prohibitory or regulatory

law was enacted to prevent, the court must decide without preconceived as-

sumptions.

48. See. e.g.. Cutler v. Wandsworth Stadium, Ltd., 1949 A.C. 398, 407. See infra
notes 131-33 and accompanying text.

49. The source of "no right without a remedy" has been traditionally judicial.

See Foy, supra note 28, at 528. See also Texas Pac. Ry. v. Rigsby, 241 U.S. 33, 43

(1916); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). In many states it is also
a state constitutional doctrine. See generally Schuman, Oregon's Remedy Guarantee: Article
1, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35 (1986).

Oklahoma law is an exception to the claim that **no right without a remedy" is not
statutory. An Oklahoma statute provides: "Any person who suffers detriment from the
unlawful act or omission of another, may recover from the person in fault a compensation
thereof in money, which is called damages." Okla. Stat. Ann. tit. 23, § 3 (West 1955).
A few Oklahoma cases have used this statute as the basis for providing new tort actions.
See, e.g., Johnson v. Harris, 187 Okla. 239, 102 P.2d 940 (1948); Crosbie v. Absher,

174 Okla. 593, 51 P.2d 970 (1935); Copeland v. Anderson, 707 P.2d 560, 564 (Okla. Ct.

App. 1985).



1990] STATUTORY DUTY ACTION 793

Under a traditional negligence analysis, the judge determines whether
the defendant owed the plaintiff a duty of care.^^ The jury determines
whether there was a breach, cause in fact, foreseeability/proximate cause,

and damages. ^^ In a statutory duty action, the statute provides the duty

the defendant owed to the plaintiff." The judge is responsible for
instructing the jury that the legislature has determined that the defendant

owed this duty.
Of the remaining negligence elements, the issue of foreseeability

presents the most difficulty because of an overlap between the focus

test's function in determining the statute's apphcability and foreseea-

bility's **scope of duty" function." If the focus test is crucial to the

statutory duty analysis, and if this test supersedes foreseeability, a court's

50. L. Green, Judge and Jury 30 (1930); Prosser & Keeton, supra note 7, at
236. In most negligence cases it is presumed that the defendant owed plaintiff a general

duty of reasonable care. See Terry, Negligence, 29 Harv. L. Rev. 40, 52 (1915): "There

is a negative duty of due care of very great generality, resting upon all persons and owed

regularly to all persons, not to do negligent acts." Accord E. White, Tort Law in
America 57 (1985), which refers to Professor Terry's views and says that they were "a

restatement of Holmes' 'duty of all to all,' first formulated in 1873." See also Holmes,

The Theory of Torts, 1 Am. L. Rev. 652 (1873) (Mark DeWolfe Howe attributes this
essay to Holmes in M. Howe, Justice Oliver Wendell Holmes: The Proving Years
64 (1964)).

51. Green, supra note 30, at 30-31. The terms proximate cause and legal cause

are frequently used in place of the term foreseeability. See Prosser & Keeton, supra
note 7, at 165; Restatement (Second) of Torts § 328C (1965). Furthermore, cause in

fact is often treated as a subcategory of proximate or legal cause. Restatement (Second)

OF Torts §§ 328c, 431 (1965).

In addition, many courts and commentators limit cause in fact to "but for" {sine

qua non) causation. See Harper, James & Gray, infra note 53, § 20.2 at 91. Others
apply a "substantial factor" test which requires that "defendant's conduct has such an

effect in producing the harm as to lead reasonable men (sic) to regard it as a cause."

Restatement (Second) of Torts § 431 comment a (1965). See also Smith, Legal Cause

in Actions of Torts, 25 Harv. L. Rev. 103, 223, 229 (1911). I prefer "substantial factor"

to "but for" in assessing cause in fact because it leaves the jury a little bit of judgment

beyond the purely factual issue of whether A was a cause of B. If substantial factor were
the test for cause in fact in a statutory duty case it would allow the jury to retain a

small degree of normative input when focus entirely preempted foreseeability. See infra

note 63 and accompanying text.

52. If the duty is mandatory and specific, see infra note 67 and accompanying

text, some courts may also use the statute to determine what constitutes breach, thereby

making defendants strictly liable for the consequences of their prohibited acts. See, e.g..

Hearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983) (described as an imphed statutory

tort action, but actually a statutory duty action). Most statutes used to affect civil liability

are strict liability statutes. See Forell, supra note 6, at 263.

In cases involving mandatory and specific duties, all that remains for the jury to

determine on the breach question is whether the defendant did the prohibited act.

53. F. Harper, F. James & O. Gray, The Law of Torts ch. 18 (2d ed. 1986).



794 INDIANA LAW REVIEW [Vol. 23:781

finding that a focused statute provides the duty precludes the jury from

determining the scope of duty.

Focus is the means courts use to determine whether the legislature

intended that persons like the defendant owed a certain statutory duty
to persons like the plaintiff. **[I]t is only with reference to the risks

perceived by the lawmakers that the actor has set his judgment up against

theirs in omitting a statutory requirement."^'* Unless a finding of focus

is made, the statute cannot realistically be considered the source of the

defendant's duty to the plaintiff. Without focus, the statute is only some
evidence of what the common law rule should be."

Examination of the focus and foreseeability tests shows that they

are redundant. A statute has focus if its purpose is to protect persons
like the plaintiff from the risk of harm the plaintiff suffered. This is
the test courts usually apply to determine whether a statute ought to

affect a civil liability. ^^ Although tests for foreseeability have been de-

scribed in many different ways, there is widespread agreement that
foreseeability tests address whether it is fair to hold the defendant

responsible to someone in the plaintiff's situation for the risk of harm
the plaintiff suffered.^^ When one compares the tests for focus and
foreseeability, their similarity is apparent.^*

The functions of focus and foreseeability are also similar. Focus

limits a statutory duty's use to tort cases that serve the purpose the

statute was intended to accomplish; focus provides the statutory duty's

boundaries. The function of foreseeability is to limit defendant's liability

to situations where, applying community standards, it is fair and rea-

sonable to find liability. ^^ It limits liability by having the jury determine

54. Harper, James & Gray, supra note 53, § 17.6, at 629 n.32.
55. Restatement (Second) of Torts § 288B comment d (1965); Harper, James

& Gray, supra note 53, § 17.5, at 605-06.
56. See. e.g.. Ontiveros v. Borak, 135 Ariz. 500, 667 P.2d 200, 211 (1983) (statutory

duty); Lange v. Minton, 303 Or. 484, 488, 738 P.2d 576, 578 (1987) (statutory duty);

Stachneiwicz v. Mar-Cam Corp., 259 Or. 583, 586, 488 P.2d 436, 438 (1971) (negligence
per se); Erickson v. Kongsli, 240 P.2d 1209, 1210 (Wash. 1952) (negligence per se). Accord

Harper, James & Gray, supra note 53, § 17.6, at 628; Morris, On Torts 168 (2d ed.
1980); W. Prosser & W. Keeton, On Torts 224-25 (5th ed. 1984).

57. See Harper, James & Gray, supra note 53, at 655. "The obligation to refrain
from that particular conduct is owed only to those who are foreseeably endangered by
the conduct and only with respect to those risks or hazards whose likelihood made the
conduct unreasonably dangerous. . . . [This] is the prevailing view." Id.

58. Id. at 662-63.

59. See, e.g.. Harper, James & Gray, supra note 53, at 657-59, 747; O'Connell,
supra note 30, at 432-33 ("But foreseeability has relevance in negligence cases only in its

normative sense: harm is deemed foreseeable only if we decide that defendant is eligible

for the imposition of liability.").

The jury's roles in tort actions are that of factfinder, law applier, and determiner



1990] STATUTORY DUTY ACTION 795

who ought to be protected from what risks in the particular set of
circumstances which the jury concludes existed in the case before them.

Although foreseeability is sometimes described as purely a question of

fact,^ it is more accurately a mixed question of fact and policy. The
jury must determine what actually happened and then make the normative
determination of whether the plaintiff and the risk of harm the plaintiff
suffered were reasonably foreseeable; thus, **the concept of foreseeability

is elastic.
''^^ The foreseeability element is satisfied where the defendant

actually foresaw neither the plaintiff nor the risk because defendant's

failure to foresee may have been unreasonable. Foreseeability is also
satisfied when a reasonable person could not have foreseen either the
way the accident occurred or the extent of injury to plaintiff. ^^ Both
focus and foreseeability are means of deciding what the limits on de-

fendant's duty ought to be. Therefore, the determination that a statute

is focused should preclude the jury's determination of foreseeability.^^

and applier of community norms. Defenders of the jury's role as determiners of social

values argue that it is more appropriate that jurors, instead of trial judges, determine

such things as the scope of duty based on foreseeability. They assert that jury determinations

of what is fair are more likely to represent the community's values than would a judge's

determination. The jury is viewed **as a microcosm of the community, applying the moral

standards forged by society, democratizing the judicial process and ameliorating the

harshness of rules of law." Id. at 414-15. Thus described, it provides the next best thing

to a legislative determination of who and what are deserving of legal protection. But see
L. Green, Judge and Jury 412-17 (1930).

60. * 'Foreseeability is a judgment about a course of events, a factual judgment

that one often makes outside any legal context." Fazzolari v. Portland School Dist. No.

IJ, 303 Or. 1,4 734 P.2d 1326, 1327 (1987). But see O'Connell, supra note 30, at 395:

"There is language in . . . opinions which might be taken as an indication that the court

considers foreseeabiUty as an empirical fact. But this position cannot be taken seriously

because the term is always defined in each case by the decision maker's conceptions of

the defendant's liability."

61. Harper, James & Gray, supra note 53, § 18.2, at 669.
62. Most courts and commentators agree that the exact manner in which the injury

occurs is irrelevant to the question of foreseeability; only the general risk of harm needs

to be reasonably foreseeable. "[T]he concept of foreseeability refers to generalized risks

of the type of incidents and injuries that occurred rather than predictability of the actual

sequence of events." Fazzolari v. Portland School Dist. No. IJ, 303 Or. 1, 21, 734 P.2d

1326, 1338 (1987).

Furthermore, most courts and commentators agree that so long as the general risk

of harm to plaintiff was reasonably foreseeable, the fact that the extent of harm was

much greater than a reasonable person would have anticipated is irrelevant. It is a

"universally accepted rule that the defendant takes the plaintiff as he finds him and will

be responsible for the full extent of the injury even though a latent susceptibility of the

plaintiff renders this far more serious than could reasonably have been anticipated."

Petition of Kinsman Transit Co., 338 F.2d 708, 724 (2d Cir. 1964).

63. The one exception to this when both a common law negligence action exists
and a permissive statute is present is discussed infra note 88 and accompanying text.



796 INDIANA LAW REVIEW [Vol. 23:781

The essential corollary to this is that if a statute is not focused, it should

not preclude a jury's determination of foreseeability even though it is

somewhat relevant to the case at bar.

For example, if a statute requires landlords to maintain their rental

property in a habitable condition for the protection of their tenants,

and a tenant is injured because a landlord violated this duty, the statute

is focused and the court should consider incorporating the statutory duty

into a new common law liability rule. In such a case, the jury's fo-
reseeability role was preempted. In contrast, if a trespasser who occupied
the landlord's premises without the landlord's consent is injured, the

statute is not focused, and the statutory duty should not be the basis

for the court's common law rule. It might be a factor the court considers
in determining whether to allow injured trespassers to bring an action.

However, if the court allows an action, the statute should in no way
change the judge's role as the determiner of duty and the jury's role

as the determiner of foreseeability.

Thus, in the case of the injured tenant, the court might use the

statutory duty as the basis of a new tort action. If it did, there would
be no foreseeability issue for the jury to decide because the court's

finding of focus would determine the scope of duty question. In the

case of the injured trespasser, the court could create a duty if it found

one was appropriate, and the jury would determine the scope of that

duty through a foreseeability test.^

Deciding whether the legislature determined the scope of a duty, or

whether the jury should do so, requires courts to acknowledge that it

is often difficult, if not impossible, to discover what the legislature

intended. Courts should be conservative in determining a statute's cov-

64. The presence of a habitability statute could cut either way on the question of

whether the court should create a tort action for an injured trespasser. On the one hand,
the court might conclude that the legislature provided protection to one class of persons

with the intent of excluding all others. Creation of a new tort action would therefore

interfere with the purpose of the statute. On the other hand, the court might conclude
that the legislature's express provisions protecting some people from the risk of harm that

befell plaintiff is evidence that the legislative purpose would be best served if the court

provided tort actions for ail persons injured when the conduct the statute prohibited was

engaged in.

If there was a question of fact about whether plaintiff was a trespasser, then it

might be appropriate for the court to instruct the jury that if it found plaintiff was a

tenant, no issue of foreseeability would be allowed. On the other hand, if the jury found
that the plaintiff was a trespasser, and if the court decided to allow an action by a

trespasser, the jury would apply a foreseeable plaintiff/foreseeable risk test. The harder

case would be where the injured party was a tenant's guest. See Daniels v. Brunton, 7

N.J. 102, 80 A.2d 547 (1951); Humbert v. Sellers, 300 Or. 113, 708 P.2d 344 (1985).

The court would have to examine the legislation closely to determine whether tenant's

guests were intended to be protected and instruct the jury accordingly.



1990] STATUTORY DUTY ACTION 797

erage, and only base a civil action on the statutory duty when persons
and risks fail within the core of the statute's coverage. ^^ Courts should

not claim legislative authority as the basis for what was actually judicial
law-making.

When cases involve legislation of uncertain applicability, courts
should acknowledge that although the statute may be relevant to the
court's decision whether to create a new action, it is not focused. Any
allowed action is purely a judicial creation, and the court should allocate
functions between the judge and jury in the usual way. In these cases,

courts should leave the scope of duty issue to the jury's application of

the foreseeability test.^

II. The Different Kinds of Statutory Duties

A. The Standard of Care in Statutory Duty Actions

A focused statute can be the source of the duty to prevent injury.
A related issue is what standard of care should be applied when a statute
is the source of a tort action's duty. Statutory language varies greatly.

The most important variation concerning the standard of care is man-
datory **shaH" language contrasted with permissive **may" language.

7. Mandatory Statutory Duties.—Most courts addressing the issue
of the standard of care involving a focused statute have done so in the

negligence per se context. Typically, the statutes use mandatory language

such as **shaH" or *'must" and describe the prohibited or mandated

conduct very specifically. Classic examples of these statutes are various

traffic regulations concerning speed limits, stop signs, and traffic Hghts.

When violations of these statutes are prosecuted criminally, the standard
of care is strict liability; that is, if defendants engaged in the prohibited

conduct they are guilty.^^ When these statutes are used in the civil arena,
more leeway is provided through whatever negligence per se test a

particular jurisdiction applies. Some form of either negligence per se
with excuses^^ or prima facie evidence of negligence^^ is most commonly

used.

65. Gattman v. Favro, 306 Or. 11, 757 P.2d 402 (1988). See Hart, Positivism and

the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607-08 (1958).
66. Of course, where the evidence presented is insufficient to allow a reasonable

jury to find foreseeability, the court can determine the scope of duty/foreseeability issue.

See, e.g.. Hefty v. Comprehensive Care Corp., 307 Or. 247, 766 P.2d 1026 (1988). The

court said: "[l]n an extreme case a court can decide that no reasonable factfinder could

find the risk foreseeable. . , . This is an 'extreme case.'" Id.

67. LaFave & Scott, Criminal Law 242 n.l (2d ed. 1986).
68. Singleton v. ColHngs, 40 Colo. App. 340, 574 P.2d 882 (1978); Carter v.



798 INDIANA LAW REVIEW [Vol. 23:781

Whatever negligence per se standard of care a court uses in cases

in which a common law negligence action already exists is equally
appropriate as the uniform standard used when a court creates a new
mandatory statutory duty action. Nevertheless, courts sometimes use a

different standard of care in mandatory statutory duty cases without
providing any explanation. For example, the District of Columbia Court

of Appeals recently created two statutory duty actions. One used an
ordinary negligence standard of care; the other used the District's neg-

ligence per se standard.

In Turner v. District of Columbia,^^ a mother sued the District of

Columbia for the wrongful death of her child, alleging the District had

breached its specific mandatory duties under the Child Abuse Prevention

Act.^' Because the District had failed to remove plaintiff's infant son

from his abusive father's custody, the baby died of starvation and

dehydration.^^ The District of Columbia Court of Appeals previously
had held, based on the much criticized but widely followed public duty
doctrine, ^^ that no tort action lay against the government when the injury
allegedly resulted from the government's failing to provide public

services.^'* In Turner, the court rejected this common law rule because
of the presence of a number of focused statutes. The District's standard
of care when a common law negligence action already existed and a
focused statute was present was negligence per se with excuses.^^ Nev-

ertheless, in this statutory duty action based on the Child Abuse Pre-
vention Act, the court declared that the standard of care was ordinary

negligence.

The use of the ordinary negligence standard of care in Turner was

inconsistent with the District of Columbia courts' use of the negligence

per se with excuses standard of care, both in its cases in which a common

William Sommerville & Son, Inc., 584 S.W.2d 274, 278-79 (Tex. 1979). See also Re-
statement (Second) of Torts § 288A (1965).

69. See, e.g., Satterlee v. Orange Glenn School Dist. of San Diego County, 29

Cal. 2d 581, 592, 177 P.2d 279, 285 (1947); Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d
270 (1976); Freund v. DeBuse, 264 Or. 447, 451, 506 P.2d 491, 493 (1973); Duncan v.

Wescott, 142 Vt. 471, 476, 457 A.2d 277, 279 (1983).

70. 532 A.2d 662 (D.C. 1987).

71. 24 D.C. Reg. 3341 (1977) (codified as amended at D.C. Code Ann. §§ 6-

2101 to -2127 (1981 & Supp. 1987)).
72. Turner, 532 A.2d at 666.

73. This doctrine rejects tort liability for public entities because the duty to protect

is owed only to the public at large and not to any particular individual who might be
injured unless a special relationship exists. See infra notes 107-08 and accompanying text.

74. Piatt V. District of Columbia, 467 A.2d 149 (D.C. 1983).

75. Leiken v. Wilson, 445 A.2d 993, 1002 (D.C. 1982); Bauman v. Sragow, 308
A.2d 243, 244 (D.C. 1973).



1990] STATUTORY DUTY ACTION 799

law negligence action already existed, and in a later specific and man-
datory statutory duty case, Rong Yao Zhou v. Jennifer Mall Restaurant,
Inc.^^ Zhou presented the issue of whether the District of Columbia's
Alcoholic Beverage Control Act,^^ which provided that tavern owners

had a statutory duty not to serve alcohol to intoxicated persons, was
an appropriate basis for a tort action against a tavern owner by a third
party injured in an automobile accident with a drunk driver. This was

a case of first impression. ^^ In Zhou, the court created a tort action

because of the presence of a focused statute. Without the statutory duty,

the court would not have allowed a tort action.^^

Although no common law negligence action against a tavern owner
existed, the court labeled the new action it created based on a specific
and mandatory statutory duty, **negligence per se.''^^ As noted earlier,

76. 534 A.2d 1268 (D.C. 1987).

77. D.C. Code Ann. §§ 25-101 to -139 (1981). The language of this statute arguably
places it in the permissive rather than mandatory category. It prohibits tavern owners

from "permit[ting] on the Hcensed premises . . . the consumption of any beverage by any

intoxicated person. ..." The use of the word "permit" in other contexts has been treated

as providing for exercise of some judgment and therefore as making an ordinary negligence

standard of care appropriate. See infra note 87 and accompanying text.

78. Apparently, this issue had never been presented on a purely common law basis.
79. Certainly, the traditional common law rule has been that, unless there is a

focused statute, a tavern owner is not liable to third parties for injuries drunk drivers

cause. See supra note 10. However, starting with Rappaport v. Nichols, 31 N.J. 188, 156

A.2d 1 (1959), many jurisdictions have changed their common law rule to allow liability.
See also Mitseff v. Wheller, 38 Ohio St. 3d 112, 526 N.E.2d 798 (1988), in which

the court created a new statutory duty action against a social host who served alcohol
to a minor who was then involved in an auto accident in which plaintiff was injured.
The court distinguished Mitseff from a previous case, Settlemyer v. Wilmington Veteran's

Post No. 49, 11 Ohio St. 3d 123, 464 N.E.2d 521 (1984), in which the court had refused

to create a new tort action against a social host who served a visibly intoxicated guest

who was then involved in an auto accident in which plaintiff was injured. The court
explained:

There exists a clear distinction between Settlemyer . . . and the case before this

court. Settlemyer concerned a social host providing alcohol to one who was

apparently an adult guest, an act that is not precluded by statute. However,

appellee provided Johnson, a seventeen-year-old minor, with alcohol. This action

was clearly in violation of R.C. 4301.69. . . . Therefore, it is incorrect to maintain

that appellee's action, which violated a statute, can be equated with Settle-

myer. . . . The statute created a duty that appellee, because of Johnson's age,

refrain from furnishing Johnson with alcohol. Accordingly, Settlemyer, being

distinguishable, does not apply.

Mitseff 38 Ohio St. 3d at 114, 526 N.E.2d at 800 (emphasis added).

The Mitseff court does not say what kind of tort action they created, but most likely,

because negligence per se was not mentioned, the action is for ordinary negligence.

80. Zhou, 534 A.2d at 1275. For a similar treatment and labelling of a new

statutory duty action against a tavern owner as "neghgence pe se," see Davis v. Billy's



800 INDIANA LAW REVIEW [Vol. 23:781

negligence per se is the doctrine courts apply when changing a common
law negligence action into a more pro-plaintiff action based on the
presence of a focused statute. ^^ Because there was no preexisting neg-

ligence action, the '*negligence per se'* label was technically incorrect.

The misuse of this terminology tends to gloss over the important fact
that the court created a new tort action.

Substantively, however, it is appropriate to treat mandatory statutory

duties as affecting the common law in the same way, whether or not
a common law negligence action previously has been or now would be
allowed without a statute. ^^ Furthermore, regardless of the label, when

Con-Teena, Inc., where the court found that plaintiff's complaint

was drafted to state a cause of action for negligence per se for violation of

ORS 471.131(1), rather than as a cause of action for ordinary common law
negligence. It may be that the allegations of the complaint are sufficient to state
such a cause of action. Because, however, the complaint appears to have been

drafted on a theory of negligence for violation of the statute and because we
believe that it states such a cause of action ... we prefer not to decide in this

case whether or not such allegations may also be sufficient to state a cause of
action for common law negligence.

284 Or. 351, 354, 587 P.2d 75, 76 (1978).

Another area where statutory duty actions are mislabelled "negligence per se" is dog

bite cases. See, e.g., Jensen v. Feely, 691 S.W,2d 926, 928 (Mo. Ct. App. 1985); Miller
V. Hurst, 448 A.2d 614, 618 (Pa. Super. Ct. 1982).

See also Wright v. Moffitt, 437 A.2d 554 (Del. 1981); Sagebrush, Ltd. v. Carson

City, 660 P.2d 1013 (Nev. 1983).

81. See supra note 7.

82. Some courts do treat mandatory focused statutes as creating stricter standards
of care both where a common law negligence action already exists and where it does not,
but apply different stricter standards of care in the two situations. For example, the

Oregon Supreme Court applies a prima facie evidence of negligence standard of care to

cases involving focused statutes in which a common law negligence action already exists.
See Freund v. DeBuse, 264 Or. 447, 506 P.2d 491 (1973); Barnum v. Williams, 264 Or.
71, 504 P.2d 122 (1972).

In contrast, when a mandatory focused statute is used as the basis of a new tort

action, the standard of care is strict liability. This use of a more stringent standard of

care in statutory duty cases than in cases involving similar mandatory statutes when

common law negligence already exists is hard to justify.
In addition, the Oregon Supreme Court has labelled these statutory duty actions

implied statutory torts. See Humbert v. Sellars, 300 Or. 113, 708 P.2d 344 (1985); Nearing
V. Weaver, 295 Or. 702, 670 P.2d 137 (1983). An implied statutory tort is a tort action
which the legislature actually intended to create, but failed to expressly provide for it.

See supra notes 27-28 and accompanying text. Such actions are exceedingly rare. In both

Nearing and Humbert, there is little evidence that the legislature actually thought about

a tort action and intended to provide for one. It appears that the Oregon court is

attributing new tort actions to the legislature which are actually common law statutory
duty actions. The District of Columbia recently was presented with the opportunity to

apply a similar impHed statutory tort analysis to a statutory duty case. In Rong Yao
Zhou V. Jennifer Mall Restaurant, 534 A.2d 1268 (D.C. 1987), discussed supra in the



1990] STATUTORY DUTY ACTION 801

a common law tort action's mandatory duty was derived from a focused
statute, the standard of care should be consistently higher than mere
negligence. A higher standard provides appropriate deference to the
legislative decision to strictly prohibit the defendant's conduct. The higher
standard of care will make it more difficult for the jury to conclude
that the defendant's conduct was not culpable. ^^ Therefore, the court's

use of its neghgence per se standard of care in Zhou is sounder than
its use of the ordinary negligence standard of care in Turner^ and should

be applied in all mandatory statutory duty cases arising in the District

of Columbia.*"*

text accompanying note 76, the court said the following:

Incorporating into the common law a standard of care set by a legislative
enactment is distinct from determining that a cause of action arises, by impli-

cation, under a statute. The latter task is a matter of statutory construction,

requiring the court to determine whether the legislature intended something other

than that which it provided expressly. . . . Courts appropriately refrain from

making such inferences except under certain narrowly defined circumstances. . . .

By contrast, the decision to adopt from a penal statute a standard of care to

be applied in determining common law negligence is "purely a judicial one, for
the court to make". . . . Defining the contours of common law liability, including ^

the duty that may have been breached in a negligence case, is a task traditionally
within the purview of the judicial branch.

Id. at 1273-74.

Similarly, the Arizona Supreme Court rejected an implied statutory tort analysis in

their case overruling the common law rule that a tavern owner owed no duty to a third
party injured by a drunk driver. Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983). In

Ontiveros, the court declared that there was both a simple common law negligence action
and a negligence per se action against the tavern owner.

The question before us is not whether the legislature established a statutory

cause of action, but whether there is a "duty" or "obligation" imposed on the

tavern owner. We believe that the portion of the statute forbidding the sale of
liquor to an already intoxicated person was "enacted to protect members of

the public who might be injured or damaged as a result of the intoxication

which was aggravated by the particular sale of the alcoholic liquor". . . '. We
conclude, therefore, that the legislative enactment imposes an obligation upon

tavern owners and that the particular obligation under consideration is one which

was intended partly for the safety of others. We therefore recognize the duty
described in that statute as a duty imposed by statute and adopted by the

common law.
Id. at 210-11.

83. See Harper, James & Gray, supra note 53, § 17.6, at pp. 621-22. The only
courts which can justify routine selection of an ordinary negligence standard of care for

mandatory and specific statutory duty cases are those who also refuse to treat specific

mandatory statutes as anything more than evidence of negligence when a common law
negligence action already exists. See, e.g., Duplechain v. Turner, 444 So. 2d 1322, 1326

(La. Ct. App. 1984); Shatz v. TEC Technical Adhesives, 174 N.J. Super. 135, 415 A.2d
1188 (1980).

84. One possible explanation for the different standards of care used in Zhou and



802 INDIANA LAW REVIEW [Vol. 23:781

2. Permissive Statutory Duties.—Treating similarly worded statutory
duty language consistently, whether a common law negligence action
existed, is also appropriate for the other category of cases involving

focused statutes: those that used either permissive or vague general

language. Even when a common law negligence action already existed,
few commentators have addressed how courts should treat these types
of statutes. ^^ Some courts have recognized that, in regard to the ap-
pHcability of the negligence per se standard of care, courts should treat

mandatory statutes differently from either statutes that describe conduct

very generally or statutes that use permissive language. For example,

the Ohio Court of Appeals in Swoboda v, Brown^^ said:

Where a specific requirement is made by statute and an absolute
duty thereby imposed, no inquiry is to be made whether the
defendant acted as a reasonably prudent man (sic), or was in
the exercise of ordinary care. In such a situation, the obligation

Turner is that Zhou involved a private defendant and the defendant in Turner was a
governmental entity. A court could conclude that, although the pubhc duty doctrine which
precludes governmental liability in a large class of cases is inapplicable when a specific
and mandatory statutory duty exists, the public policy of limiting the liability of gov-

ernmental entities justifies applying a more pro-defendant standard of care to the conduct

of governmental entities. If such a rationale was the basis for the use of different standards

of care in Zhou and Turner, the court failed to note this anywhere in either opinion.

Such a distinction might run into difficulties under a particular state's tort claims

act if the act was one which made public bodies liable for their torts to the same extent

as private persons. For example, in Adam v. State the court said this about the public
duty doctrine: "The state tort claims act provides that the State is liable 'in the same

manner, and to the same extent as a private individual under like circumstances. . . .'

§ 25A.24. It clearly excludes the pubhc duty doctrine." 380 N.W.2d 716, 724 (Iowa 1986).
In the federal context a recent Sixth Circuit decision, Schindler v. United States, 661

F.2d 552 (6th Cir, 1981), applied the reasoning of a number of earlier United States

Supreme Court decisions interpreting the Federal Tort Claims Act. See United States v.

Muniz, 374 U.S. 150 (1963); Rayonier, Inc. v. United States, 352 U.S. 315 (1957); Indian

Towing Co. v. United States, 350 U.S. 61 (1955). The Act's pertinent language says that

the federal government can be sued "under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the place

where the act or omission occurred." 28 U.S.C. § 1346(b). The Schindler court interpreted
this language as meaning the state's public duty doctrine could not bar an action based

on violation of a federal statute. 661 F.2d at 559. States with similar tort claims act

language may feel equally compelled to jettison distinctions between tort rules apphed to
public entities and private parties.

85. Many authorities seem to presume that courts will treat all focused statutes
similarly, and that treatment will be whatever the negligence per se test is in the particular

jurisdiction. See Harper, James & Gray, supra note 53, § 17.6; Prosser & Keeton,
supra note 7, § 36; Restatement (Second) of Torts § 288A, B and § 874A comment
e (1965).

86. 129 Ohio St. 512, 196 N.E. 274 (1935).



1990] STATUTORY DUTY ACTION 803

and requirement has been fixed and established by law. . . .

Where the standard of duty is thus fixed and absolute, it being
the same under all circumstances, the failure to observe that

requirement is clearly negHgence per se. But, where duties are

undefined, or defined only in abstract or general terms, leaving

to the jury the ascertainment and determination of reasonableness

and correctness of acts and conduct under the proven conditions

and circumstances, the phrase **negUgence per se" has no ap-

plication.^^

Courts which reject negHgence per se when a focused statute has
used generahzed or permissive language are concluding that the appro-

priate standard of care is ordinary common law negligence. Thus, if a
common law negligence action exists,^^ unlike negHgence per se cases,
the permissive statute does not affect the plaintiff's burdens of production

or proof on the issue of reasonableness. Courts which use focused statutes

to create new statutory duty actions also should prefer the ordinary
negligence standard of care when the statutes' duty language is generalized
or permissive. ^^

87. Id. at 522, 196 N.E. at 276. Accord Dahle v. Atlantic Richfield Co., 725 P.2d

1069, 1073-74 (Alaska 1986).

In order for a provision to be the basis of a negligence per se instruction, it

must set forth a specific standard of conduct beyond that defined in a common
law duty. . . . This provision is not the proper basis for a negligence per se

instruction because it amounts to little more thzm a duplication of the common
law tort duty to act reasonably under the circumstances.

Dahle, 725 P.2d at 1073-74.

88. However, these courts typically permit the statute to be admitted as a factor

for the jury to consider on the issue of whether defendant acted reasonably. See, e.g.,

Bachner v. Rich, 554 P.2d 430, 442 (Alaska 1976).

89. Courts which reject negligence per se when focused statutes use generalized or

permissive language usually do not address specifically whether the statute affects the

plaintiff's burden of showing that the risk was foreseeable. This is one situation where

a preexisting common law action for negligence should result in applying a foreseeability
test despite the presence of a focused statute.

When a common law action already exists, the permissive statute neither affects the
standard of care as does negligence per se, nor is the source of the duty the same as in

statutory duty actions. Therefore, the statute does not really change anything; it serves

no independent function apart from the existing negligence action. In contrast, if no

common law negligence action exists and the basis for creating one is the permissive
statute, focus should preempt foreseeability because the court can only be basing the new

action on the statute if the plaintiff and the risk of harm involved are those which the

statute was enacted to cover. See supra note 63 and accompanying text.

In Dunlap v. Dickson, 307 Or. 175, 765 P.2d 203 (1988), the court stated that the

negligence action was a common law action effectuating the permissive statute's intent.
The court said: "We conclude that plaintiff may state a claim for common law negligence.
This accords with legislative policy. . . . The legislature has enacted a statute . . . that



804 INDIANA LAW REVIEW [Vol. 23:781

How courts treat generalized or permissive statutes when a common
law action for negligence already exists is less important than how courts
treat such statutes when there is no preexisting negligence action. In the
former situation, a tort remedy exists regardless of how the court treats
the statute. In the latter situation, the court must decide whether to

allow a tort remedy. With generalized or permissive statutory duties,

there is less impetus for courts to allow new tort actions even when
these actions would aid in the accomplishment of a statute's purpose.^
Nevertheless, in many cases the presence of the focused statute using
permissive language will be an important factor in a court's decision to

create a new action. If, but for the permissive statute, the court probably
would not have created the new action, the court should note this and
limit the scope of the duty to act reasonably to those persons and risks

of harm which the legislature intended to cover.'*

3. Statutes Using '^Permit*' or "Allow."—When the statutory lan-
guage included **permit," or **allow," most courts use simple negligence's

reasonableness standard of care.^^ *Termit" or **allow" are frequently

used in statutes appHcable to vehicle-livestock collision cases. These cases

represent how courts typically treat such statutory language.^^

prohibits permitting livestock to run at large upon the highway. ..." Id. at 181, 765

P.2d at 206 (emphasis added).

In a case like Duniap, focus should preempt foreseeability if the court only created

the tort action because of the existence of the focused permissive statute. If, on the other

hand, the court would have created a negligence action even without a focused statute,

the jury should determine foreseeability.

90. See Buckley, supra note 6, at 221; Restatement (Second) of Torts § 874A

comment h(l) (1965).
91. In contrast, if the court would have created a new negligence action even if

the statute had not existed, then the statute is not the basis of the new action's standard

of care or anything else, and foreseeability should remain an element of plaintiff's chief

case.

92. See infra note 102 and accompanying text.

93. A statutory duty area where statutes and ordinances often use "permit,"
"allow," or similar discretionary language is off-premises dog bite cases. However, instead

of allowing simple negligence actions, many courts mislabel their new action based on
the statutory duty "negligence per se."

The following ordinance is typical:

(a) The following acts or conditions are hereby declared to be public nuisances,

and it shall be unlawful for any owner or custodian of an animal to cause,

suffer, permit, keep or maintain any such nuisance;

(1) An animal, other than a cat of a species felis catus, found running at
large, or which has run at large on two or more occasions.

Salem Or., R.C. 91.015(a)(1). The Oregon Supreme Court, in Lange v. Minton, 303 Or.

484, 738 P.2d 199 (1987), based an action by a boy who was bitten by defendant's dog
on the permissive language of this ordinance. They labelled the action "negligence per

se" even though prior to this decision no common law negligence action was available



1990] STATUTORY DUTY ACTION 805

The original United States common law rule in vehicle-livestock
collisions was that the owner of the livestock owed no civil duty to
prevent the animal from wandering onto the roadway "unless he [had]
knowledge of the vicious propensities of the animal or unless he should

reasonably have anticipated that injury would result from its being so
at large on the highway. *'^'* Until the mid-twentieth century, courts
concluded as a matter of law that a plaintiff could not recover in

livestock-motorist collisions.^^ More recently, the common law rule has
changed. Owners of livestock now owe a duty to prevent their animals
from straying onto the roadway unless there is a statute to the contrary.^

Often the courts' basis for finding this duty is a fencing-in statute.'^

to a person bitten by a dog which was running at large. See also Kathren v. Olenik, 46

Or. App. 713, 719-20, 613 P.2d 69, 75 (1980); Jensen v. Feely, 691 S.W.2d 926, 928

(Mo. App. 1985); Alex v. Armstrong, 385 S.W.2d 110, 114 (Tenn. 1964).

94. 4 Am. Jur. 2d Animals § 114 p. 364 (1962). Accord Annotation, Liability of
Owner of Animal For Damages to Motor Vehicle or Injury to Person Riding Therein
Resulting from Collision with Domestic Animal at Large in Street or Highway, 29 A.L.R.

4th 431, 439 (1984). See also Eixenberger v. Belle Fourche Livestock Exch., 75 S.D. 1,

58 N.W.2d 235, 237 (1953); Fox v. Koehning, 190 Wis. 528, 209 N.W. 708 (1926),
overruled, Templeton v. CruU, 16 Wis. 2d 416, 114 N.W.2d 843 (1%2).

95. See, e.g.. Fox v. Koehnig, 190 Wis. 528, 209 N.W. 708, 713 (1926). The court
concluded:

[T]he conduct of the horse in running into the automobile in the instant case

was a most unusual and unnatural occurrence. It was not the usual conduct of

a horse. It was an accident not within the Held of reasonable anticipation. It

therefore follows that, even if the defendant may have been guilty of a want
of ordinary care in failing to maintain a more secure fence around his barnyard,

his failure in such respect was not the proximate cause of the damages sustained

by plaintiffs.

Id. See also Annotation, supra note 94, at 447.

96. See, e.g., Templeton v. CruU, 16 Wis. 2d 416, 114 N.W.2d 843 (1962) (overruling

Fox V. Koehnig, 190 Wis. 528, 209 N.W. 708 (1926) (discussed supra note 95)).
Harper, James & Gray, supra note 53, at 258-59, says:
Several of these states passed "fencing out" statutes. But times and conditions

changed and the advent of large cities, heavily populated areas, thickly settled

agricultural communities, and the development of important heavy industries,

led a number of these states either to abolish or modify the rule permitting

cattle to run at large.

For a discussion of similar experience in Canada, see Linden, supra note 19, at 59:

The Ontario courts have utihzed legislation making it unlawful for animals to

roam the highways to create a duty of care on the part of their owners where

at common law none existed. These cases accepted the view that no duty was

owed at common law, but manufactured a legislative intention to create civil
hability. After the statute was amended in 1939 matters became rather confused

until the Supreme Court of Canada finally held that a duty to use reasonable

care with regard to animals on modern highways exists independently of any

legislation.

97. See, e.g., Dunlap v. Dickson, 307 Or. 175, 765 P.2d 203 (1988).



806 INDIANA LAW REVIEW [Vol. 23:781

Therefore, some of the vehicle-livestock accident cases in which courts

created new negligence actions are statutory duty cases.^^

The **fencing in" statutes typically make it unlawful to **permit**
or **allow'' livestock to run at large on highways.^ Most courts presented
with violations of these statutes have provided a negligence cause of

action for the injured motorist. '°^ Conversely, where livestock-motorist

accidents occurred in jurisdictions governed by "fencing-out" statutes

that allow livestock to run at large, the statutes were often the basis

for denying civil liability entirely. '^^

Courts* reliance on permissive statutes in livestock-motorist cases as

the source of a standard of reasonable care, rather than strict liability

98. If the court would have created a negligence action even without the presence

of the focused statute, it would not be a statutory duty action. In most of the vehicle-

livestock collision cases it is unclear whether a negligence action would have been created

regardless of the existence of the statute.

99. See, e.g.. Or. Rev. Stat. § 607.145(1) (1989): "No person owning or having
the custody, possession or control of an animal of a class of livestock shall permit the

animal to run at large ... in a livestock district in which it is unlawful for such class

of livestock to be permitted to run at large."

100. See, e.g., Hammarlund v. Troiano, 146 Conn. 470, 152 A.2d 314, 315 (1959);
Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (1940); Parker v. Reter, 234 Or. 344, 383

P.2d 93 (1963); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24, 26 (1950); Hinkle v. Siltamaki,

361 P.2d 37, 41 (Wyo. 1961). But see Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399,

401 (1979) (rebuttable presumption of negligence); Peterson v. Pawelk, 263 N.W.2d 634,
637 (Minn. 1978) (negligence per se). The tortured analysis in Peterson illustrates the

problem a court faces when it does not distinguish between mandatory and permissive

statutes in its application of negligence per se. When a statute is mandatory, proof of
its violation usually results in negligence per se being some form of strict liability. See

supra notes 68-69 and accompanying text. Negligence per se is found to mean something
different in Peterson:

[Vjiolation of the statute of negligence per se; thus, if the violation is the

proximate cause of injury to another, the person violating the statute is liable

for the resulting damage unless the violation is excusable or justifiable under

the circumstances of the case. Moreover, the burden of proving excuse or

justification is upon the owner. . . . The meaning of the word "permit" as used

in the statute . . . clearly negates a legislative intent to impose strict liability

on the owner of an animal running at large. . . . Under the evidence, whether

defendant . . ., by his conduct, gave the bull an opportunity to run at large

or made it possible for him to do so would have been a jury question.
263 N.W.2d at 637. For the plaintiff to benefit from negligence per se he must first show
that defendant "gave the bull an opportunity to run at large or made it possible for him

to do so." Id. This sounds very much like the plaintiff must show the defendant acted
unreasonably; therefore, it would seem that negligence per se in no way aids plaintiff's

case.

101. See, e.g., Kendall v. Curl, 222 Or. 329, 353 P.2d 227 (1960), which said:

The legislature has said that stock may range at large on the highways of
Umatilla County. ... If cattle and horses have a right to be on the road, their

owner is not negligent in allowing them on the road. . . . There being no duty,

there is no breach of a duty, hence no fault, and no liability.



1990] STATUTORY DUTY ACTION 807

or negligence per se, is entirely appropriate. The following statement in
the North Carolina decision, Gardner v. Black, ^^^ provides the usual
rationale: "Such a statute as this relating to allowing or permitting
livestock to run at large, 'imphes knowledge, consent, or willingness on
the part of the owner that the animals be at large, or such negligent
conduct as is equivalent thereto.'"

Based on such an interpretation of ** permit" or * 'allow," a more
demanding standard of care is unjustified. Most statutes using permissive
language involve owners of animals or custodians of other people. '^^

Because of the difficulty in controUing the actions of an animal or

another person, neghgence is the appropriate standard of care.

B. The Use of ''May" and its Special Applicability to Governmental
Bodies

The other statutory language upon which some courts base ordinary
negligence actions is "may." The discretion this word implies justifies
courts' conclusion that choosing whether to engage in the described

conduct only should result in liability if the plaintiff proved the act or

failure to act was unreasonable under the circumstances. •^ By far, the
greatest number of statutes using the permissive "may," instead of the
mandatory "shall," apply to government bodies. Actions against gov-

ernmental defendants present special problems, particularly when the
focused statute is permissive.

While governmental immunity has been statutorily abolished for the

most part, various doctrines make it difficult to sue government entities
in tort. One major obstacle is the public duty doctrine. This common
law doctrine provides that "the duty imposed on state agencies and

pubhc officials is one owed to the public generally, and breach of this

102. 217 N.C. 573, 577, 9 S.E.2d 10, 12 (1940). Accord Parker v. Reter, 234 Or.

533, 549, 383 P.2d 69 (1963); Pongetti v. Spraggins, 215 Miss. 397, 61 So. 2d 158 (1952).

103. See, e.g.. Or. Rev. Stat. § 421.165(3) (1989) ('The Department of Corrections

shall adopt rules to permit an inmate confined in a Department of Corrections institution

to be granted temporary leave from the institution."); Or. Rev. Stat. § 426.680(1) (1989)

("The superintendent of the facility designated ... to receive commitments for medical

or mental therapeutic treatment of sexually dangerous persons may grant a trial visit to

a defendant committed as a condition of probation.") (emphasis added).

104. For example, in Bauer v. Southwest Denver Mental Health Center, Inc., 701

P.2d 114 (Colo. Ct. App. 1985), the Colorado Court of Appeals refused to apply its

negligence per se standard because the statute involved used the discretionary "may"

instead of the mandatory "shall." The court said: "In order for an actionable claim of

negligence per se to arise, the statute in question must prohibit or require a particular

act." Id. at 118.



808 INDIANA LAW REVIEW [Vol. 23:781

duty does not provide an individual with a cause of action.
*'*<^^ Simply

put, because a duty is owed to all, it is owed to none. The state and
its subdivisions owe no duty to render assistance unless, in addition to

there being a focused statute, a special relationship existed between the

state and the injured party. ^*^

Even where the public duty doctrine is no longer the rule,*°^ there

are two further hurdles the plaintiff may have to overcome when statutes
use the permissive **may": duty versus power; and discretionary/planning

versus ministerial/operational. The Iowa Supreme Court's 1986 decision,

Adam v. State, discussed both doctrines. ^°^

In Adam, the state was liable for economic harm the plaintiff grain
producers suffered because the Iowa State Commerce Commission (ICC)
neghgently licensed and inspected a grain elevator whose owners sub-

105. State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777,

785 (1979), overruled, Ryan v. State, 132 Ariz. 308, 656 P.2d 597 (1982). See infra note

109.

106. The Arizona Supreme Court described this doctrine in State v. Superior Court

of Maricopa County, 123 Ariz. 324, 599 P.2d 777 (1979), overruled, Ryan v. State, 132

Ariz. 308, 665 P.2d 597 (1982). This case involved a class action on behalf of depositors

of various insolvent thrift associations against the Arizona Corporation Coinmission for

economic harm suffered because the Commission failed to fulfill various regulatory duties.

The court explained that the traditional common law rule treated the state's duty as owed
to the general public, and that breach did not result in Uability to injured individuals.

Id. at 785. Accord 2 Cooley, Torts 385 (4th ed.); Note, Police Liability for Negligent

Failure to Prevent Crime, 94 Hary. L. Rev. 821, 823 (1981).
The court in Superior Court of Maricopa County added that under the public duty

doctrine, a statute would not be the source of a duty of care in tort unless the "obligation

owing to the general public [was] narrowed into a specific duty to an individual." 665

P.2d at 785. The Arizona court found a special relationship in this case and therefore

allowed a tort action even though the language of some of the focused statutes was

permissive.

107. The public duty doctrine has been widely criticized. See, e.g., 3 K. Davis,

Administrative Law Treatise 458-59, § 25.06 (1958); Prosser & Keeton, supra note 7,
at 1049-50. The modern trend is to reject it entirely. See, e.g., Leake v. Cain, 720 P.2d
152 (Colo. 1986); Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987);
Adam v. State, 380 N.W.2d 716 (Iowa 1986); Maple v. City of Omaha, 222 Neb. 293,
384 N.W.2d 254 (1986); Brennan v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979);
Coffey V. City of Milwaukee, 74 Wis. 2d 526, 247 N.W.2d 132 (1976). But see Everton

V. Willard, 468 So. 2d 936 (Fla. 1985).

In 1982, the Arizona Supreme Court overruled State v. Superior Court of Maricopa

County, in Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), and held that it would

"no longer engage in the speculative exercise of determining whether the tort-feasor has

a general duty to the injured party, which spells no recovery, or if he had a specific

individual duty which means recovery." 656 P.2d at 599. The court completely abandoned

the public duty doctrine, concluding "the parameters of duty owed by the state will

ordinarily be coextensive with those owed by others." Id.

108. 380 N.W.2d 716 (Iowa 1986).



1990] STATUTORY DUTY ACTION 809

sequently went bankrupt. There was no preexisting common law tort
action. '°^ One of the bases for the suit was a permissive statute which
provided that the ICC *'may" inspect grain dealers.''^ Another statute
provided that "'may' confers a power rather than a duty."''' The court
noted that when a power is created rather than a duty, there is no
requirement that the state act and that, therefore, there can be no

liability for failure to act."^ However, once the state exercised that

power, **it had a responsibility to act with due care.""^

Denying a statutory duty action unless the state exercised its power

by acting affirmatively, even though it was not required to, has its roots

in the treatment of voluntary assumption of duty by affirmative conduct,

most commonly described as the '*Good Samaritan" doctrine. ""* Under
this doctrine, a stranger has no duty to assist a person in difficulty or

peril. Once the stranger affirmatively acts, liability will exist if the acts
are negligent and result in harm to another. When a statute merely
creates a power in the state to act, the state is viewed as having the

role of the stranger who is under no obligation to act and is liable only
if action is taken which negligently injures someone.

The distinction between a duty and a power will not always be
determinable by the presence of

*

'shall" instead of "may." As one

109. Id. at 720.

no. Iowa Code § 542.9 (1989).
111. Iowa Code § 4.1(36)(c) (1989).
112. Adam, 380 N.W.2d at 723.
113. Id. In Adam, the harm suffered was purely economic. Economic harm is one

of the classic "no duty" categories at common law. Adam illustrates how a court can
use a focused statute to justify creating a tort action when, without the statute, the action

would not be permitted. The principled basis for creating the action is that the court

finds that the statute was intended to prevent economic harm and effectuates this purpose

by creating a statutory duty action to remedy this harm. Accord Nearing v. Weaver, 295

Or. 702, 670 P.2d 137 (1983) (a statutory duty action for purely emotional harm).

114. Typically, unless there is a special relationship between the parties, defendant

has no duty to rescue plaintiff from harm caused by sources independent of defendant's

control. This is illustrated by the lack of a stranger's duty to rescue another person who

is drowning even if the stranger is standing next to a life preserver which he fails to

throw to the drowning person. See Restatement (Second) of Torts § 314 (1965).

The "Good Samaritan" doctrine, which allows liability if a stranger acts affirmatively,

is an exception to this heartless rule. See Prosser & Keeton, supra 1, at 378-82.
Restatement (Second) of Torts § 323 (1965) describes the doctrine as follows:

One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of the other's

person or things, is subject to liability to the other for physical harm resulting

from his failure to exercise reasonable care to perform his undertaking, if:

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's rehance upon the undertaking.

See also Restatement (Second) of Torts § 324A (1965).



810 INDIANA LAW REVIEW [Vol. 23:781

commentator notes: '*[S]tatutes inevitably do vary enormously in the

extent to which the obligations they impose involve scope for the exercise

of judgment and discretion, and the distinction between *power' and

'duty' will always be to some extent a matter of degree.""^
When an action is based on allegedly negligent conduct under a

permissive statute, most state tort claims acts create the further issue

of whether the conduct was an immune discretionary/planning decision.*'^
This issue was raised in Adam and the court held that, despite the
permissive nature of the statute, the negligent conduct did not involve

"policy considerations.
"^^^ 'The policy-planning decisions were made by

the legislature in enacting the ... act."''^ The discretionary versus
ministerial issue may also arise when a statute's language is mandatory,
although it will be much less likely that the governmental conduct will
be found to involve an immune discretionary decision.**^

In summary, where a governmental entity is the defendant, there

are certain doctrines that merit examination before a court decides to

create a new tort action based on a statutory duty. In addition to finding
the statute focused, it is necessary to determine whether the jurisdiction

still appHes the public duty doctrine and, if so, whether there was a

specific duty which created a special relationship that excepted the action

from the doctrine. The special relationship exception is more likely found
when the statute uses mandatory language.

If the case comes within the special relationship exception, or the

court has rejected the public duty doctrine, it is then necessary to

determine whether the statute creates a duty or only a power. If the

statute is permissive, a court is likely to treat it as merely providing a

power, and to allow a new tort action only when the governmental
entity has, in fact, exercised the power. Finally, especially when the
statute is permissive, courts should examine whether the defendant's

conduct involved discretion or was merely ministerial. Tort claims acts

115. Buckley, supra note 6, at 221.

116. See generally Prosser & Keeton, supra note 7, at 1062. See also Restatement
(Second) of Torts § 895D (1979).

117. 380 N.W.2d at 726.
118. Id. at 725. Accord Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719

(1979). See also Nordbrock v. State, 395 N.W.2d 872 (Iowa 1986) (court dismissed tort
action against the state by shareholders of a bank that became insolvent for its negligence

in bank examinations and supervision because the court found that the conduct involved

discretionary/planning decisions)

.

119. This question has been discussed extensively in cases brought under the Federal

Tort Claims Act, 28 U.S.C. § 2680(a). See, e.g., Berkovitz by Berkovitz v. United States,

108 S. Ct. 1954, 1963 (1988); Schindler v. United States, 661 F.2d 552, 555-57 (6th Cir.

1981); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974).



1990] STATUTORY DUTY ACTION 811

usually authorize the creation of a new tort action only if the conduct
is determined to be ministerial.

C. The Effect of the Doctrine of No Right Without A Remedy on
Statutory Duty Analysis

The next section addresses what effect the venerable doctrine of ubi
ius ibi remedium (no right without a remedy) should have on a state
court's decision to create a new tort action based on a statutory duty.

In fifteenth century England, '^^ and probably even nineteenth century

America,'^' the existence of a focused statute made a court's job easy.
Sir Edward Coke's commentary on the Magna Carta said that "every
Act of Parliament made against any injury, mischief, or grievance doth
either expressly, or impliedly give a remedy to the party wronged, '"^^

and was the source of the **no right without a private remedy" doctrine. '^^

It enabled courts to provide a new tort action whenever a statutory
duty was breached. Although it has sometimes been described as a maxim
of statutory construction, ^^'^ this doctrine has been much too influential
for mere maxim. It was the source of remedies clauses in 35 state

constitutions.^" Furthermore, it has been the nonconstitutional source

of statutory actions in numerous cases. '^^

The **no right without a remedy" doctrine has been the basis for

English "statutory negligence" actions*^^ and federal implied rights of

actions. ^^* The source of both types of action is said to be the legislature.

However, if what is meant by "source" is that the legislature impliedly

intended to create these actions, this claim is pure fiction. It is incorrect

120. Prior of Bruton v. Ede, Y.B. Pasch. 10 Edw. 4, fo. 31, pi. 7 (Q.B. 1470),

reprinted in 47 Selden Society 31 (N. Neilson ed. 1931).

121. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154-73 (1803).

122. E. Coke, Second Part of the Institutes of the Laws of England 55 (1642).
123. See Foy, supra note 28, at 524-25; Schuman, Oregon's Remedy Guarantee:

Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35, 38 (1986).

124. "One maxim is Ubi ius ibi remedium, suggesting that if the legislation created

a right it must have been intended to create an adequate remedy to enforce that right."

Restatement (Second) of Torts § 874A comment c (1979).
125. Schuman, supra note 49, at 40; Note, State Constitutional Remedy Provisions

and Article I, Section 10 of the Washington State Constitution: The Possibility of Greater

Judicial Protection of Established Tort Causes of Action and Remedies, 64 Wash. L.

Rev. 203, 204 (1989); Note, Medical Malpractice Statute of Repose: An Unconstitutional
Denial of Access to the Courts, 63 Neb. L. Rev. 150, 170 (1984).

126. See, e.g., Foy, supra note 28, at 556 n.234.

127. Fricke, The Juridical Nature of the Action Upon the Statute, 76 L.Q. Rev.

240, 243 (1960).

128. See, e.g., Texas & Pac. Ry. v. Rigsby, 241 U.S. 33 (1916).



812 INDIANA LAW REVIEW [Vol. 23:781

to describe the doctrine as legislative.*^^ As one commentator noted,
even in Coke's time, **the right to maintain a private action under a

statute did not depend on the text of the statute or the demonstrable

intentions of Parliament. The implied right of action depended instead

upon a general legal principle extrinsic to the legislation itself. *"^° '*No

right without a remedy" has been, since its inception, a judicial doctrine

allowing courts to do what is equitable.'^*

When the doctrine has been found applicable, most courts have not
distinguished between statutes which are purely declaratory and those

that provide criminal or administrative penalties. *^^ However, a few

jurisdictions, most notably England, expressly prefer to provide a civil

action when a statute does not provide any penalty.*" The English
rationale for this distinction is not tied explicitly to '*no right without

a remedy.'' Instead, the English courts claim that when the legislature
provides some form of sanction, it is intended to be the exclusive sanction.
In contrast, where the legislature provides no sanction, it intended that

129. An exception to this assertion arguably may exist in the few jurisdictions where
a statute such as the one set out below is in effect: "Any person who suffers detriment
from the unlawful act or omission of another, may recover from the person in fault a
compensation therefor in money, which is called damages." 23 Okla. Stat. tit. 23, § 3

(1981), see N.D. Cent, Code § 32-03-01 (1989). See also Cal. Civ. Code §§ 3281, 3282
(1989). See supra note 49.

Where such a statute exists, every injury to a person or property as a result of

violation of a focused statute may be viewed as requiring a tort remedy. In regard to
such a statute one court has said: "It does not create any duties but only provides for

a remedy should an established duty be breached." Butts Feed Lots, Inc. v. United States,

690 F.2d 669 (8th Cir. 1982). However, like jurisdictions which have remedies clauses in

their constitutions, see infra note 127 and accompanying text, jurisdictions with these

statutory remedies provisions have not developed any doctrine for routinely using them

as the basis for tort actions. But see Cal. Evid. Code § 669 (1967) discussed in Holdych,
The Presumption of Negligence Rule in California: The Common Law and Evidence Code
section 669, 11 Pac. L.J. 907 (1979-80) cited with approval in Huang v. Garner, 157
Cal. App. 3d 404, 203 Cal. Rptr. 800, 806 n.9 (1984).

130. Foy, supra note 28, at 528.

131. In addition, in many states it is provided for in the state constitution. Nev-
ertheless, a theory of constitutional duty actions analogous to statutory duty actions has,

so far, not been developed. See Schuman, supra note 49, at 70.

132. Foy, supra note 28, at 527; Restatement (Second) of Torts § 874A (1979).

133. See Doe d. Bishop of Rochester v. Bridges, 1 B. & Adol. 847, 859 (1831), in
which the court said that

where an Act creates an obligation, and enforces the performance in a specified

manner, we take it to be a general rule that performance cannot be enforced

in any other manner. If an obligation is created, but no mode of enforcing its
performance is ordained, the common law may, in general, find a mode suited
to the particular nature of the case.

See also Buckley, supra note 6, at 214-21.



1990] STATUTORY DUTY ACTION 813

the courts provide a civil remedyJ ^"^ Any discussion of legislative intent
as a rationale for distinguishing between statutes which provide a sanction

and those that do not is usually yet another fiction.

Under the **no right without a remedy" principle, it is dubious
whether the provision of a criminal or administrative penalty is a remedy

for injured individuals. Nevertheless, there appears to be a tendency,

even among American courts, to create a statutory duty action when
the statute is purely declaratory and to deny such a remedy when the
statute provides a criminal sanction. For example, in Oregon there are
two cases whose different outcomes may be based on the declaratory
versus criminal or administrative sanction distinction.

In 1978, the Oregon Supreme Court refused to create a statutory
duty action for plaintiff children against their mothers who had aban-
doned them in violation of a mandatory criminal statute. '^^ Yet, in 1983,
the same court created a statutory duty action for a plaintiff who sued
police officers for failing to arrest her husband who had physically
threatened her at home in violation of a restraining order. '^^ The statute
upon which the action was based was a purely declaratory mandatory
arrest statute. Even though the court did not use *'no right without a

remedy" language, it was probably an important factor in providing a

new tort action. '^^

Under the principle of "no right without a remedy," no valid basis

exists for preferring statutory duty actions when a statute is declaratory.
When no private remedy is available under either common law or the
statute, courts should accord the same weight to this principle for both

types of statutes. Other justifications for preferring actions when a statute

is declaratory are equally dubious. The legislature will have rarely decided

the question of whether civil liability should be available unless it does

so expressly.

One commentator used the statutory purpose argument as the basis
for concluding that declaratory statutes "provide the strongest case for

implying a private cause of action. '"^^ He argued that the new tort
action "may be the only means to carry out the legislative intent."

134. See Cutler v. Wandsworth Stadium, A.C. 398, 407 (1949); Phillips v. Britannia

Hygenic Laundry Co., [1923] 2 K.B. 832, 838.

135. Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978).

136. Wearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983). In Nearing, the action

created appears to be a statutory duty action although the court seems to treat it as an

implied statutory tort. Id. at 711-12, 670 P.2d at 143-144.

137. Id. See also Cain v. Rijken, 300 Or. 706, 717 P.2d 140 (1986) (created a

statutory duty action based on a permissive declaratory statute). See generally Schuman,

supra note 49, at 70.

138. Comment, Implied Causes, supra note 16, at 1254.



814 INDIANA LAW REVIEW [Vol. 23:781

However, as another commentator pointed out: ** Prescriptions unsup-

ported by penalties are usu2illy instructions of an essentially administrative

nature, often addressed to public bodies. The grafting of civil liability

in tort upon such provisions is likely to give rise to considerable practical
difficulties and may also involve defiance of (various) policy factors.'*'^'
Creating a statutory duty action based on a declaratory statute may
often defeat the legislative purpose.

^"^^

In cases involving both declaratory statutes and statutes with pen-

alties, courts should examine the legislative purpose in enacting the statute

and determine whether the creation of a new tort action would better
effectuate that purpose. Consideration of whether the statute is purely

declaratory occasionally may provide some guidance in determining this
question.

•'*'

D. Responsible Judicial Lawmaking

Statutory duties raise particularly troublesome questions about who
makes law and who should make law. Statutory duty cases are often
what Ronald Dworkin calls **hard cases. '**'*^ By definition, they involve
situations in which the issue is either one of first impression or one in

which courts previously have declared no duty was owed and, therefore,
no tort remedy was available. In statutory duty cases, courts must decide

whether the presence of a focused statute should influence them to

change the common law. When the case presents a new fact pattern to
the court, the effect of the statute may be less obvious than when a
court is asked to overrule previous case law. Nevertheless, in both

situations courts are not asked merely to correct the lower courts' errors

in applying the existing law; courts are asked to make law.
How should courts make new law? Many judges, attorneys, and

commentators shrink at the use of words Hke *'make'' and **create*' to

describe the role judges play in the legal system. They maintain that a

139. Buckley, supra note 6, at 217.

140. See, e.g., Burnette v. Wahl, 284 Or. 705, 712, 588 P.2d 1105, 1109 (1978)

which said:

If there is any chance that invasion into the field by the court's establishment

of a civil cause of action might interfere with the total legislative scheme, courts

should err on the side of non-intrusion because it is always possible for the

legislature to establish such a cause of action if it desires. Courts have no

omnipotence in the field of planning, particularly social planning. . . . Courts

should exercise restraint in fields in which the legislature has attempted fairly

comprehensive social regulation.

141. See Comment, Implied Causes, supra note 16, at 1254-59 for a thorough

discussion of the various competing factors that go into determining whether a new tort
action would better carry out the legislative purpose.

142. Dworkin, Hard Cases, 88 Harv. L. Rev. 1057 (1975).



1990] STATUTORY DUTY ACTION 815

judge's role is limited to finding and applying the law the legislative
and administrative branches have created. ^"^^ Statutory duty cases are

effective vehicles for challenging this view because they force courts to

consider their role in the lawmaking process.

Asserting that courts create statutory duty actions does not mean
that legislative intent is irrelevant. ^"^ It is very relevant if the meaning

of
*

'legislative intent" is not limited to the issue of whether the legislature

intended to create a tort action. Almost certainly the legislature, as

opposed to individual legislators, did not consider, much less decide,
this issue. The best posture a court can take is to assume there was no
legislative decision concerning tort liability unless there is evidence to

the contrary.
'"^^

If legislative intent includes consideration of what social or, some-

times, private good'"^ the legislature intended to accomplish by enacting

a statute, it is indeed relevant to a judge's consideration of a statutory

duty. In deciding whether to create a new tort action when a focused

statute is present, a court should examine the legislature's purpose or

purposes for enacting the statute. Its decision to create a new action

143. See, e.g., Donaca v. Curry County, 303 Or. 30, 35-36, 744 P.2d 1339, 1342

(1987); England, 9 J. Legal Stud. 27 (1980). They disapprove of the legal methodology

and language of judges such as former California Supreme Court Justice Traynor who
made new law in such cases as State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal. 2d

330, 240 P.2d 282 (1952) (intentional infliction of emotional distress) and Greenman v.

Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1962) (strict

liability for products liability). They find especially inappropriate any discussion of making

law based on policy considerations. See, e.g., Walker v. Bignell, where the court said:

Instead we prefer to declare directly that, as a matter of public policy, mu-

nicipalities should not be exposed to common law hability under the circumstances
present in this case. Exposure to such liability would, we feel, place an unrea-

sonable and unmanageable burden upon municipalities such as the defendants

herein.

100 Wis. 2d 256, 301 N.W.2d 447, 453 (1981).
144. Some commentators beheve that there is no such thing as a discernible legislative

purpose or intent. Federal Circuit Court Judge Easterbrook says:

[J]udicial predictions of how the legislature would have decided issues it did

not in fact decide are bound to be little more than wild guesses. . . . Moreover,

because control of the agenda and logrolling are accepted parts of the legislative

process, a court has no justification for deciding cases it thinks the legislature

would in their absence.

Easterbrook, Statutes' Domain, 50 U. Cm. L. Rev. 533, 548 (1983).
145. See Bob Godfrey Pontiac v. Roloff, 291 Or. 318, 342, 630 P.2d 840, 854

(1981) (Linde, J., concurring).

146. See Posner, Economics, Politics, and Reading of Statutes and the Constitution,

49 U. Cm. L. Rev. 263, 265, 279 (1982). See also O.W. Holmes, Justice Oliver Wendell

Holmes: His Book Notices and Uncollected Letters and Papers 107-09 (H. Shriver

ed. 1936).



816 INDIANA LAW REVIEW [Vol. 23:781

should be based on these legislative purposes if they are sufficiently
determinable. '"^^ However, in creating or rejecting a new tort action as
a means of carrying out the legislature's purpose, a court should not

attribute this to the legislature and thereby disclaim judicial responsibility

for what is clearly a judicial act.

When examining the purpose of a statute, a court might benefit
from Justice Felix Frankfurter's analysis of statutory purpose at the

federal level. ^'*^ He asserted that a court's function is to * 'decide what
remedies are appropriate in the light of the statutory language and

purpose and of the traditional modes by which courts compel performance

of legal obligations.'""^^ Frankfurter was faced with a problem that state

courts do not have: the Erie doctrine and other judicially imposed

limitations on making federal common law.^^^ These Umitations on the
federal courts' creative powers led Frankfurter and others ^^' to attempt

to attribute the source of private rights of action to Congress, even

though Congress had not expressly provided for them. During Frank-

furter's time, the Supreme Court's analysis was based on its claim that

Congress knowingly had delegated to the courts the power to provide

civil remedies for violations of federal statutes.^"

State courts do not need to resort to such fictions.^" They have the

power to make common law. The search for legislative purpose is still

147. Judge Posner believes that whether it is called legislative intent, motive or

purpose, what the legislature would prefer will often be beyond the capacity of judges

to determine. Posner, supra note 146, at 272-73.

148. See, e.g., Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 341

U.S. 246, 255 (1951) (Frankfurter, J., dissenting); Board of Commissioners v. United

States, 308 U.S. 343, 349 (1939).

149. Montana-Dakota Utilities Co., 341 U.S. at 261.

150. With the exception of the years in which J.I. Case Co. v. Borak, 377 U.S.

426 (1964) was the controlling law, the Court has viewed itself as not possessing the

power to create federal remedies based on federal statutes. Since Cort v. Ash, 422 U.S.

66 (1975) replaced Borak as the rule on private remedies, **[t]he Court has retreated from

the notion, central to Borak, that the federal judiciary has inherent power to create private

remedies for statutory violations absent a contrary congressional intent. Instead, the Court

now treats the implication of private rights of action as a matter of statutory construction."
Frankel, Implied Rights of Action, 67 Va. L. Rev. 553, 562 (1981).

151. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 (1964). See generally Foy,

supra note 28, at 558-62.

152. Tunstall v. Brotherhood of Locomotive Fireman & Enginemen, 323 U.S. 210,
213 (1944).

153. And neither do the federal courts. Today's much more conservative and, in
my view, honest view of federal implied rights of action does not mean that injuries
resulting from violations of federal statutes and regulations are without a remedy. However,

the source of that remedy is state court application of state tort doctrine to the federal

statutes.

At least one commentator beheves this is a bad thing. See Foy, supra note 28, at



1990] STATUTORY DUTY ACTION 817

appropriate, but not because the legislature expects the judiciary to

effectuate this purpose by providing a civil action. Instead, judicial
determination of the legislature's purpose for creating a statutory duty

enables the court to exercise its common law powers to create or deny
a new action responsibly/^"*

E. Proposed Analysis and Conclusion

Based on the previous discussion of statutory duty issues, the fol-
lowing analytical framework for dealing with statutory duties and their
close relative, negligence per se, is proposed.

Whether a common law negligence action already exists, the first
issue a court should resolve is focus. If a court determines that the

plaintiff and the risk of harm that resulted in the plaintiffs injury are
within the core of what the legislature intended to cover, the court
should find the statute applies to the plaintiff's case. This finding of

focus ehminates the jury's usual role of determining foreseeability.*"

The court then should carefully investigate what purpose the statute
was intended to serve. Determination of focus assists in resolving this
question, but the court should inquire further as to whether the legislation

itself already satisfies the legislature's goal of protecting certain people

from certain risks of harm. If the creation of a new remedy or the
strengthening of an existing remedy would better carry out the legislative

purpose, the court should create a statutory duty or negligence per se

action. It should be especially cautious in going forward with a statutory

duty action when prior common law denied such an action. Usually,
sound public policy reasons exist for common law '*no duty" rules. The

571. I disagree. Using a federal statutory duty as the basis of a tort action in state court

is no more problematic than using a state statutory duty. If this results in lack of

uniformity among jurisdictions, it is certainly no greater than that which exists in almost
all areas of tort law.

Meanwhile, injured parties will be provided with some form of remedy if a remedy

would help effectuate the purpose of the legislation.

154. An example of a situation where courts have held that a focused statutory
duty should not be the basis for a new tort action is where the defendant in a lawsuit

seeks to sue the attorney for the plaintiff in negligence for having brought an unwarranted

action. In a number of states, such an action has been unsuccessfully sought based on

violations of the state's Code of Professional Responsibility. See, e.g., Nelson v. Miller,

227 Kan. 271, 607 P.2d 438, 451 (1980); Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d

585 (1981); O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977).

The court in Nelson justifies its refusal to create such an action by asserting that

to do so would thwart the Code's purpose of encouraging zealous representation of clients.

607 P.2d at 451.

155. Except where a common law action already exists and the statute is merely
permissive. See supra note 88 and accompanying text.



818 INDIANA LAW REVIEW [Vol. 23:781

presence of a focused statute should cause the court to carefully reconsider

such a rule.^^^ However, the rule should be abandoned only if the court
believes such a change is necessary to achieve the legislative purpose

underlying the statute.

Once the court determines that a change in the existing law is merited,
it should examine the mandatory or permissive statutory language. If
the statute evidences an intent that the actor to whom it is addressed
be given little or no discretion, a stricter action than negligence should
be provided uniformly even though a common law negligence action
already exists.'" This action probably will be labeled

*

'negligence per

se." However, if no common law action exists, it is important that the
court not hide behind the ''negligence per se" label, but instead openly

weigh the consequences of creating a new statutory duty action. '^^

When a focused statute is permissive, negligence typically should be
the kind of action retained or created. When a negligence action already
exists, the permissive statute should have no impact on the existing
neghgence action. '^^ Where no common law action exists, the permissive
statute should be the basis of a new statutory duty action for negligence
in which the focus determination resolves foreseeability, but the jury

determines reasonableness. It may be appropriate in both situations to
allow the jury to consider the statute in its determination of whether

the defendant acted reasonably; however, the burden of production and

proof on this element should remain with the plaintiff.
A court's adoption of this proposed analysis will make the inter-

relationship of statutes and tort actions more coherent, certain, and
honest. Courts still will face hard policy choices in deciding whether to

create a statutory duty action. These choices will be especially difficult

when a longstanding "no duty" area of the law is involved.
Application of the proposed analysis will not always result in a new

tort action. Instead, it will encourage courts to more openly acknowledge

156. For one court's method of deciding whether to overrule an existing common
law decision, see G.L. v. Kaiser Found. Hospitals, Inc., 306 Or. 54, 59, 757 P.2d 1347,

1349 (1988), in which the Oregon Supreme Court said:

Ordinarily this court reconsiders a nonstatutory rule or doctrine upon one of

three premises: (1) that an earher case was inadequately considered or wrong

when it was decided, . . .; (2) that surrounding statutory law or regulations have
altered some essential legal element assumed in the earlier case, . . .; or (3) that
the earlier rule was grounded in and tailored to specific factual conditions, and

that some essential factual assumptions of the rule have changed.
See also Note, Oregon's Hostility to Policy Arguments: Heino v. Harper and the Abolition

of Interspousal Immunity, 68 Or. L. Rev. 197 (1989).
157. See supra notes 68-69 and accompanying text.

158. Actually, it will most Hkely be some form of strict liability with hmited defenses
which will probably be labelled "excuses." See Forell, supra note 6, at 262.

159. See supra note 88 and accompanying text.



1990] STATUTORY DUTY ACTION 819

the extent of their role in making law when statutes are involved, and
when courts make new law they will do so as a result of principled
analysis rather than by judicial fiat.



I