The Remedy for Frivolity in Our Courts

By addressing the implications of duty, judges might be able to more soundly dismiss meritless lawsuits.

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The ongoing debate over frivolous lawsuits often addresses procedural reforms that would empower judges to screen out meritless claims. Existing procedures, however, already enable judges to dismiss these lawsuits (whether they choose to use them or not is another issue). The less-discussed aspect of "frivolous" suits are those claims that are simply not worth litigating from the standpoint of sound social policy, even if they have some chance of winning on the merits. Here too judges already have the capacity to remedy this problem in the formulation of "duty."

In tort law, duty refers to the legal obligation owed by one party (the dutyholder) to another (the rightholder) -- it is the first substantive element of any tort claim. Without an existing legal obligation between the parties, there is no legal basis for making a defendant liable for a plaintiff's injuries.

Although duty is a necessary predicate for tort liability, the concept was surprisingly neglected within tort law until the 20th century was well under way. Courts largely assumed that membership within civil society obligates one to avoid foreseeably injuring others through unreasonably dangerous behavior. But as society has become more complex, the conception of duty has changed considerably. Courts increasingly rely on various policy factors for determining the conditions under which one owes a duty to another, issuing no-duty rulings that have foreclosed tort claims in entire categories of tort cases. The jurisprudence in this area can be maddeningly vague, but there has been a clear increase in the importance of judicial no-duty rulings as a means for limiting tort liability.

No-duty rulings attempt to account for the society-wide effects that can be produced by individual tort claims. Due to the ongoing growth of mass markets and other scale effects produced by our increasingly interdependent society, tort claims involving a pair of litigants often have widespread consequences for other similarly situated parties. The only point in the tort inquiry that can account for these categorical effects occurs within the element of duty.

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A good example is provided by cases that must determine whether social hosts can incur tort liability for automobile accidents caused by their inebriated guests. In a leading New Jersey case, the plaintiff was seriously injured in a head-on collision with an automobile driven by a friend of the defendants who had been drinking alcohol with the two of them at their home prior to departing in his car. The plaintiff's evidence showed that the defendants' guest had consumed the equivalent of thirteen drinks and was clearly intoxicated when he got into his vehicle. In a case like this, the question of liability for the jury is straightforward: Did the defendants, by supplying their inebriated friend with copious amounts of alcohol before escorting him to his car, create an unreasonable risk of foreseeable harm to others, like the plaintiff, on the highway?

The issue of liability is not so straightforward in truth, however, because the jury does not consider how such an obligation might affect other dutyholders in future cases. That categorical issue must instead be resolved by the judge, who is empowered to decide the threshold legal question of whether social hosts even have a duty to prevent their guests from driving home drunk in the first place.

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Mark Geistfeld is a professor of civil litigation at New York University School of Law, where he has been a member of the fulltime faculty since 1991.

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