The element of duty is the least understood and most amorphous element of negligence. One reason that duty is not well understood is that duty analysis combines consideration of fact-specific issues of foreseeability of harm, relationship between the parties, and seriousness of injury with analysis of the public policy implications of finding a duty in the specific case, including the burden that will be placed on defendants by imposing a duty. This is a delicate balancing act for most courts. Over the last eleven years, the Maine Supreme Judicial Court, sitting as the Law Court, has employed duty analysis in negligence cases as a means for imposing its own ideas of policy on the law of negligence irrespective of prior case law or the facts of the case being decided, a practice that has almost inevitably resulted in the imposition of severe limitations on the scope of negligence liability. When a court concludes as a matter of law that a defendant has no duty to a plaintiff in a given situation, the possibility of liability is negated before the claim can reach a jury. Such a conclusion is also essentially unreviewable unless the legislature is willing to act. Limiting negligence liability by finding that no duty exists is ordinarily a proper and legitimate exercise of judicial power if the court uses the correct legal standard. What makes the recent duty decisions of the Law Court institutionally unpalatable and ultimately threatening to our system of justice is that the court has focused its duty analysis on a single factor, public policy, to the exclusion of other elements of duty, such as the nature of the relationship between the parties, the reasonable foreseeability of the event, and the potential seriousness of the injury. In a line of cases beginning with Trusiani v. Cumberland & York Distributors, Inc., the court has gradually made duty into a device used to reach a desired result based solely on the court's view of public policy rather than on the facts of the individual case. One result of this trend is that fewer and fewer negligence claims are reaching the jury. Another is that public policy is being established without the input and information a legislature usually receives before enacting a statute and without the citizen control guaranteed by election of representatives. Perhaps most insidious, however, is that these decisions have imposed limitations on negligence claims which are as severe as the tort reform proposals that have been rejected by the Maine Legislature. This Article will demonstrate how the Law Court is undermining the traditional concept of duty in the law of negligence and will argue that the court ought to return to using the factors of nature of the relationship between the parties, reasonable foreseeability, and seriousness of injury in determining whether a duty exists.

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