Duty to protect the plaintiff against the risk that occurred

The second level of duty analysis is the highly fact-sensitive 'particular duty' conception. This narrow and cautious concept affords close judicial control over the limits of liability. Here Louisiana judges, like common-law judges, commit themselves to nothing in advance of case by case, piecemeal formulations of wrongful negligence, and they have not been inspired by the general clause to develop a more ambitious approach. The particular duty rule they follow has had different permutations over the years, but as it is currently phrased it calls for 'duty/risk' analysis. Duty/risk, a variant of standard duty analysis, has for the last thirty years dominated the Louisiana tort scene, but that formula comes from American common law, particularly from the influential writings of Professors Leon Green and Wex Malone.(66) These authors argued that this test would provide greater judicial control over the formulation of legal policy, strengthening the position of the judge as opposed to the jury over the discretionary elements in liability determinations.(67) According to a leading commentary, the essential question which duty/risk asks the judge to decide is 'whether that general duty extends to protect the plaintiff against the particular risk that occurred, in the particular manner in which it occurred. Put differently, does this defendant have a duty to protect this plaintiff against this risk that occurred in this manner?'(68) In other words, in the formulation of the question of negligent wrongfulness, Louisiana is, as far as I can see, in the mainstream of American law, not the civil law.http://www.ejcl.org/52/art52-1.txt