TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, April 3, 2009

Risk Creation and Foreseeability in Restatement Third

Friday's opening panel included John C.P. Goldberg (Harvard), Ben Zipursky(Fordham), David Owen (South Carolina), and Jane Stapleton (Texas).  Ralph Peeples (Wake Forest) served as moderator.

Goldberg presented an article he co-authored with Zipursky, Intervening Wrongdoing in Tort:  The Third Restatement's Unfortunate Embrace of Negligent Enabling .  Goldberg voiced his concern that sections 19, 34, and 37 of R3, taken in combination, adopt the theory of enabling torts.  The view behind enabling torts is that the negligent enabling of wrongdoing by another is the same thing as personal wrongdoing.  Both are simple negligence.  Goldberg objected that this can lead to a misattribution of responsibility.  He was, however, quick to point out that it is not his position background actors should never be liable.  Instead, he argued courts should rely on extant doctrines to handle them.  In the paper, Goldberg and Zipursky analyzed cases and found evidence of both disconfirming practices (instances where the enabling theory should lead to liability, but does not) and false positives (cases where there is liability, but not based on enabling reasoning).  In the former category, Goldberg cited the failure of negligent entrustment cases, in general, to go past the provider of the dangerous instrumentality to sellers and the widespread rejection of "social host" liability.  In the latter category, Goldberg noted that in many cases where a background actor is found liable, it is because there are grounds for attributing the wrongdoer's conduct to her.  Goldberg also noted that, in many of the cases, the background actor had an independent and affirmative duty to act reasonably.


Zipursky discussed his piece entitled Foreseeability in Breach, Duty, and Proximate CauseHe prefaced his remarks by noting that tort law had been on a roller-coaster ride since the 1960's, swinging back and forth from wildly pro-plaintiff to wildly pro-defendant phases.  The goal of R3, he noted, is to bring stability to torts.  Zipursky stated that foreseeability is present in 3 different tort elements:  duty, breach, and proximate cause.  He was relatively uncritical of R3's use of foreseeability in proximate cause (or "scope of liability" as it is called in R3).  He was more critical of R3's use of foreseeability in breach, stating it was included as part of what is essentially a Hand-type balancing approach.  Zipursky was most critical of R3's non-use of foreseeability relating to duty, and he spent the bulk of his time on that topic.  R3 does not rely on foreseeability in the duty analysis.  Zipursky noted 3 problems with this approach.  First, as a matter of descriptive practice, courts rely on foreseeability in duty.  He stated that, by his research, at least 47 and maybe as many as 49, states use foreseeability in their duty analyses.  Second, he noted that the goal of banishing foreseeability from duty was to make judges' opinions more transparent, a major goal of the Reporters generally.  Zipursky argued this falsely assumes those clearly articulated reasons will not involve foreseeability.  Finally, his third concern is specific to section 37 affirmative duties.  If the background rule in these cases is no duty as opposed to duty, the issue of foreseeability is necessary, if not sufficient, to even consider whether there should be a duty.

Owen presented Figuring Foreseeability.  He began with a comparison between the nature of the universe and tort law.  He noted that foreseeability was the "dark matter" of tort.  It binds all together.  As a doctrinal matter, Owen approved the inclusion of foreseeability in the Hand-type test for breach.  He disapproved of the dulling of the importance of foreseeability in the scope of risk section, and he agreed with Zipursky that it should be included in the duty analysis.  Owen noted that foreseeability grounds tort law in morality.  A harmful action cannot be considered wrong unless the actor was able to foresee the harm.  Unfortunately, Owen conceded, the concept provides little decisional guidance.  However, Owen defended the use of foreseeability by stating its alternatives--justice, fairness, social policy--were equally vacuous. 

Stapleton discussed "Creating" and "Posing" Risks as Organizing Principles in the Third Restatement (Torts)Stapleton began by emphasizing that the audience for R3 is the bench and bar.  They need a document that is clear and brief (comments that were seconded by Mal Wheeler in his commentary).  She argued that one very significant way to clarify R3 would be to define the crucial phrase "risk" in detail and in an easily accessible place, preferably in the comments to section 7.  Stapleton proposed stipulating definitions of risk in which "creating a risk" was reserved for duty and "posing a risk" would be employed for breach.  All other synonyms would be removed.  Stapleton argued this would increase the analytical coherence, and would make discussions under "scope of risk," formerly proximate cause, easier to follow.

Commentary was provided by Mal Wheeler(Wheeler, Trigg, Kennedy, LLP) and Allen Linden(Canada Federal Court Appeals).  Linden, a student of R2's reporter, William Prosser, lamented the continuation of the no-duty-to-rescue rule.

In the Q&A session, Jonathan Cardi stated that R3 provides better guidance on duty issues.  He asked what is lost by relying on conduct that creates a risk.  Zipursky argued that risk creation does not cover all that is actionable.  Stapleton noted her general approval of R3's approach, stating that duty is appropriately couched in terms of risk.  Goldberg joked he would be apocalyptic, and stated that we will lose sense of the nature of torts.  His follow-up was serious.  If duty is defined in terms of risk-creation, that inspires a regulatory response to risk.  By contrast, tort law is about private rights of action given to people who have been wronged by the conduct of another.

Co-Reporter Mike Green got the last word.  He agreed with Stapleton that a distinction should be made between creating a risk and failing to ameliorate an existing risk.  He articulated R3's goal to produce transparent tort decisions.  He stated that duty is overused, and courts should instead be deciding there is no breach as a matter of law.  While Green acknowledged the importance of foreseeability, he likened it to letting a genie out of a bottle.  He again acknowledged that foreseeability was crucial for morality, but noted that in the law, where the rubber hits the road, there are other significant factors to consider.  Finally, in response to Judge Linden's concern about overturning the no-duty-to-rescue rule, he stated that section 31 takes a very small step in that direction by focusing on criminal statutes that, for example, require the reporting of child abuse. 

You can listen to the panel here.


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