Monday, March 29, 2010

Guest Blogger David Owen: "Foreseeability in Accident Law"

    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

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I enjoyed reading David Owen's recent blog about foreseeability. He makes good points--I find no issue in negligence law to be more confusing to my students than foreseeability, and it is important to continue to search for clarity on this subject. I offer a short repost in light of some research that I am conducting on Palsgraf.

Professor Owen posits that most courts consider foreseeability as an important part of the duty analysis. I have read literally thousands of cases in the context of fifty-state surveys on Palsgraf and on the essence of states' duty analyses. Professor Owen is certainly correct that an overwhelming majority of states (all but between 3 and 7) consider duty-foreseeability in some form. As to the precise manner in which it is considered--plaintiff-foreseeability or risk-foreseeability, or both? categorical or specific? as determinative of duty or merely one factor?--courts are all over the board and often self-conflicting. I do note that Arizona and Iowa have recently rejected duty-foreseeability, citing the Restatement—it remains to be seen whether this is the beginning of a trend.

Professor Owen is also undoubtedly correct in stating that foreseeability is is a central concept in resolution of negligence liability--both in judging wrongdoing and in judging how far responsibility for the wrongdoing should extend. All courts (and the Restatement Third) agree with this proposition.

But where the rubber hits the road in terms of doctrine is in who gets to decide wrongfulness and extent of liability--who gets to decide foreseeability? On this matter, courts are rampantly confused or internally inconsistent. For example, about half of jurisdictions that consider foreseeabiilty in deciding duty also state (as did Cardozo in Palsgraf) that if reasonable minds can differ on the question, duty-foreseeability should be decided by the jury. In one jurisdiction, although foreseeability is considered to be part of proximate cause, it is to be decided by the court. And in a few jurisdictions, courts admit that foreseeability plays an identical role in duty and proximate cause. This makes for some entertaining opinions. See, e.g., Patrick v. Union State Bank, 681 So.2d 1364, 1372 (Ala. 1996) (“We have determined that, as a matter of law, the fraudulent acts of the imposter here were foreseeable to the extent that a duty may be imposed on the bank. . . . We conclude that Ms. Patrick submitted substantial evidence creating a genuine issue of material fact as to whether the fraudulent acts of the imposter were foreseeable to the extent of supporting a finding of proximate cause."). In light of this doctrinal morass, why not go with the Restatement Third's approach and leave foreseeability to breach and proximate cause? This leads me to my final point.

Professor Owen suggests that it makes little sense to impose duties on people to avoid risks of harm they fairly cannot be expected to contemplate and that in this vein, courts can and should decide foreseeability at a categorical level. I have elsewhere offered a normative response to this assertion—see 5 B.C. L. Rev. 972-83; 58 Vand. L. Rev. 794-804; 81 U.S.C. L. Rev. 722-26. In essence, I question whether there is a category of plaintiff or risk with respect to which particular facts might not result in either high or low foreseeability. As an empirical matter, however, I offer the following observations:

In a fifty-state survey of the question, I have found two jurisdictions that analyze duty-foreseeability in a broad way with fair (albeit not perfect) consistency. In Florida and Indiana, courts have held that the relevant duty-foreseeability question is "whether the defendant's act created some foreseeable risk of harm to others," leaving to proximate cause whether the plaintiff's particular injury and manner of injury was foreseeable. This is not a categorical analysis, however—it seeks no answer to the foreseeability of some category or plaintiff or risk, but rather asks in the broadest sense whether some injury to anyone was foreseeable. A number of other jurisdictions echo this doctrine, but then regularly decide in the context of duty whether the plaintiff's particular injury was foreseeable in light of the facts.

Still other jurisdictions state the duty inquiry as "whether defendant's conduct created a foreseeable class of risk, which includes the plaintiff's injury" or "whether defendant's conduct created a foreseeable risk to a class of people of which the plaintiff is a member." This approach is not a categorical inquiry either--it is merely a thinly veiled fact-specific inquiry into whether the plaintiff's particular injury was foreseeable.

Finally, most jurisdictions engage without apology in a fact-specific, particularistic analysis of plaintiff or risk-foreseeability in the duty context. Thus, even if it might be possible to decide duty-foreseeability categorically, courts are not actually doing it.

Posted by: jonathan cardi | Apr 2, 2010 8:08:30 AM

Interesting concepts of foreseeability in tort law. However, I am researching for an article on foreseeability within a health and safety context, ie without the benefit of hindsight. I wonder how similar or different the dichotomy is?

H&S practitioners like myself have to make many decisions based upon the risk, severity and likelihood of an event. The regulators and the courts often make a decision based on the outcome of an event. This brings into the equation how foreseeable was that event and were the controls sufficient to mitigate the risk?

Foreseeable implies that is was also predictable and therefore preventable with appropriate control measures. However, whether an event was foreseeable, with the benefit of hindsight, or conceivable but improbable, is a moot point. After the event many authors will of course testify it was foresseable...

Anyone care to comment or would like me to expand?

Ray Rapp - Chartered Health and Safety Practitioner

Posted by: Ray Rapp | Nov 28, 2010 4:21:27 PM

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