Intervening Wrongdoing in Tort: The Restatement (Third)’s Unfortunate Embrace of Negligent Enabling

37 Pages Posted: 4 Dec 2009 Last revised: 13 Oct 2010

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: December 2, 2009

Abstract

Judges have long struggled to articulate rules and principles governing the responsibility in tort of a remote actor whose wrong consists of setting the stage for a second wrongdoer who inflicts injury on a victim. The problem is found in a wide variety of scenarios ranging from drivers who leave keys in cars that are stolen, to social hosts whose intoxicated guests drive home, to gun manufacturers who market in ways that arguably render their guns more available for criminal misuse. Building on Robert Rabin’s idea of “enabling torts,” the Restatement (Third) of Torts: Liability for Physical and Emotional Harm adopts an aggressive strategy for dealing with this problem: it denies that there really is a problem. Claims against remote actors, it says, require no different treatment than claims against those who cause injury without intervening wrongdoing.

In this contribution to a symposium on the Restatement’s Physical and Emotional Harm provisions, we demonstrate that the Reporters’ proposed approach runs afoul of numerous well-established doctrines that limit remote-actor liability while unjustifiably glossing over the actual grounds on which courts allow for the imposition of liability on remote actors. We then lay out an alternative framework for assessing remote actor liability that is truer to doctrine, more workable for judges, and more in keeping with the nature of tort as a law of wrongs and recourse.

Keywords: Apportionment, Attribution, Affirmative Duty, Causation, Concurrent Negligence, Intervening Wrong, Modified Comparative Fault, Negligence, Negligent Enabling, Negligent Entrustment, Negligent Marketing, Proximate Cause, Social Host Liability, Superseding Cause, Torts

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Intervening Wrongdoing in Tort: The Restatement (Third)’s Unfortunate Embrace of Negligent Enabling (December 2, 2009). Wake Forest Law Review, Forthcoming; Harvard Public Law Working Paper No. 10-09. Available at SSRN: https://ssrn.com/abstract=1517230

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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