The example helps to illustrate why the divergence between tort law’s moral substance and conceptual structure might, despite its propensity to inhibit perspicuous analysis and understanding, nevertheless sometimes be desirable. The relational structure of the duty of care in negligence allows us to entertain remedial structures such as the above, in which the injured plaintiff gets to piggyback on the defendant’s breach of duty to another. If the law had to supply such a recovery through an omnilateral duty of care, of the kind urged by Judge Andrews237 and the Third Restatement,238 it might risk inducing the sort of problematic moral deliberation just discussed.
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