Monday, March 29, 2010
Foreseeability often gets a bum rap in tort. As ephemeral as foreseeability by nature plainly is, most of us appreciate how important the concept is in shaping the outer boundaries of negligence responsibility. Courts widely assert that foreseeability resides importantly in duty, and that recoverable harm, to be compensable, must be classifiable as foreseeable. Of central importance, though often simply ignored, is the fact that the very notion of breach of duty—of legal “wrongdoing”—involves a blameworthy choice to act one way rather than another in the face of the foreseeable consequences of the actor’s contemplated action and its alternatives.
Only recently have I come to realize how deep the roots of foreseeability are in providing negligence law with moral succor. Thanks to a conference at Wake Forest last April marking the conclusion of central work on the Restatement (Third) of Torts, hosted by Reporters Mike Green and Bill Powers, Ben Zipursky and I both had an opportunity to focus closely (me, for the first time) on the role of foreseeability in negligence law. Ben and I both concluded that foreseeability properly plays a larger, deeper role in negligence law than the Third Restatement and many commentators believe it should. While Ben focuses closely on the internal coherence of tort law, my focus is on its moral power. And so I was struck by the salience of Jim Henderson’s remarks, in his perceptive March 15 guest blog, reminding us that “at its core, tort law’s purpose is to help to define what is just, right and fair” according to “relational notions of right and wrong.”
The other side of conduct that is “right and fair,” of course, is wrongdoing, the central feature of the tort of negligence. Wrongdoing suggests that an actor chose to act in a way that violated some norm of proper behavior (say, failing to adhere to customary behavior in a particular relationship or failing to accord equal respect to the interests of a stranger) rather than in an alternative way that would have avoided the kind of harm the actor caused. Ascribing moral character (blame or praise) to a choice to risk or avoid the risk of harm implies the actor’s ability to conceive (“foresee”) the consequences of the chosen action. It seems fundamentally unfair, and quite illogical, to blame a person for failing to avoid a consequence he or she could not imagine. Foreseeability thus is inextricably bound up in the notion of wrongdoing, which includes the notion of how far responsibility for wrongdoing should extend.
Foreseeability, I think, also belongs in judicial duty determinations, although the Reporters for the Third Restatement disagree, reasoning that foreseeability is intrinsically factual and so should be left to breach of duty determinations for juries alone to decide. Courts, however, routinely state that foreseeability is the first inquiry in duty determinations, and I think they are right, since it makes little sense to me to impose duties on people to avoid risks of harm they fairly cannot be expected to contemplate. While I agree with the Reporters that judges ordinarily should not use the foreseeability issue in duty determinations to hide factual or important policy choices, I believe that courts correctly consider the foreseeability of certain types of risk at an abstract, categorical level just as they so consider other reasons for defining types of situations where the normal principles of negligence law should not tread.
In teaching tort law over the years, I now realize that I may have failed to give foreseeability its due. During the preliminary examination of negligence concepts, I normally stop to linger on the Hand formula (with delight, if perhaps a bit too long), dwelling on some of the many hidden mysteries in B, and P, and L, but typically paying little heed to the small child crouching in the shadows—foreseeability. While I do touch briefly on the notion of foreseeable risk in these early days of negligence inquiry, my usual thought is that I’ll return to it—and address it fully—down the road when we get to proximate cause, at which time foreseeability rears its head hesitatingly in Polemis, proudly in Wagon Mound I, and then powerfully in Palsgraf. It is then (and only then) that I normally return my students to a consideration of the role of foreseeability in breach, reviving a focus on the Hand formula where foreseeability enhances the inquiry in suggesting negligence if B < (f) P x L.
This delayed approach to foreseeability may be necessary in allowing the burgeoning legal minds of first-semester students time to develop some preliminary blossoms of negligence understanding, but I now am thinking that I should dwell a bit more in those earlier classes on how the blameworthiness of a choice to act one way rather than another rests necessarily on the foreseeable consequences of the choice, be those consequences good or bad. Putting aside whether negligence should be defined primarily in terms of costs and benefits, section 3 of the Third Restatement—thanks to the considered efforts of initial Reporter Gary Schwartz—now helpfully defines negligence in terms of foreseeable consequences—the foreseeable likelihood of injury, and its foreseeable severity (in Hand formula terms, the foreseeability of both P and L). For torts teachers who provide the section 3 definition to their students, foreseeability now will squarely be on the table at the inception of the inquiry into how a norm of proper behavior should be defined. Although I still probably will defer much of the discussion on the deeper mysteries of foreseeability in my own torts classes until we examine proximate cause, I am glad the new Restatement gives such prominence to a feature I believe to be the moral glue of the concept of wrongdoing in the law of accidents.
--David Owen, Carolina Distinguished Professor of Law
University of South Carolina School of Law