W. Jonathan Cardi
Wake Forest University; University of Kentucky - College of Law
Vanderbilt Law Review, Vol. 58, p. 739, 2005
The concept of "foreseeability" is a cloud over the common law of negligence. Although foreseeability is central to most courts' resolution of negligence cases, foreseeability's content is shadowy and the contours of its role in negligence muddled and elusive. This paper approaches three distinct, although overlapping tasks regarding foreseeability.
First, the paper offers a positive account of foreseeability's role in negligence cases - a thorough treatment of which is lacking in the scholarship to date. In rendering this positive account, the piece reveals that foreseeability's place in courts' analysis of duty is largely vacuous, a smoke-screen for unfettered judicial discretion.
Next, the article suggests that a seemingly innocuous general duty provision of the Restatement (Third) of Torts would, if adopted by courts, effectively purge foreseeability from the element of duty, forcing such considerations into breach and proximate cause. (The Restatement is not particularly candid about this effect, which perhaps explains the relative ease with which the provision was preliminarily approved by the ALI.) The most important byproduct of this doctrinal change, the piece points out, is the potential for a significant shift in power from judge to jury.
Finally, the piece explores the normative efficacy of such a revolution in negligence jurisprudence. The purging of foreseeability from courts' considerations of duty is undoubtedly, the piece argues, a boon for the rule of law. Furthermore, a shift in power over foreseeability determinations from judge to jury is sensible and consistent with historical understandings of their respective roles. And lastly, although the proposed doctrinal change is significant and favorable, the piece maintains that it will not likely change the substantive outcome in a majority of negligence cases.
My hopes for the article are three-fold. I expect that the article will encourage the ALI to recognize explicitly the impact of the Restatement Third on foreseeability's role in duty decisions. (Indeed, upon reading the piece, Restatement Reporter Mike Green asked permission to incorporate this potential effect into the Restatement by reference to the article.) I also expect that the article will spark heated debate within the ALI regarding the aggressiveness of the Restatement's position. (See 54 Vand. L. Rev. for likely sources of opposition.) The focus of this paper is only partly the Restatement Third, however. It is more centrally a doctrinal piece about foreseeability. My greatest hope, therefore, is that the article will cause academics and judges to rethink foreseeability's role in duty determinations and to follow the Restatement's (albeit implicit) lead in purging duty of foreseeability.
Number of Pages in PDF File: 71Accepted Paper Series
Date posted: November 14, 2005
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