Abstract
The continuing-risk rule is ubiquitously cited by Restatements, casebooks, and treatises as a core duty rule in negligence cases. Indeed, as this Article reveals, the rule has been “adopted”—in the sense that at least one court in a jurisdiction has applied the rule, and no court has rejected it—in thirty-one jurisdictions. In addition to the breadth of its adoption, the continuing-risk rule is also far-reaching: it imposes an affirmative duty to warn, protect, or rescue another from a risk if the defendant’s conduct contributed to the initial creation of that risk. Because most negligence cases involve risk-creating conduct by the defendant, one would expect the continuing-risk rule to supply the basis for an affirmative duty in scores of cases in any adopting state. But this is not the case. To the contrary, as this Article reveals, courts frequently fail to apply or even discuss the continuing-risk rule in relevant cases. The Article seeks an explanation for this phenomenon and proffers a limitation on the rule that might assuage courts’ apparent resistance to its application.
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