Intervening Wrongdoing in Tort: The Restatement (Third)’s Unfortunate Embrace of Negligent Enabling
John C. P. Goldberg
Harvard Law School
Benjamin C. Zipursky
Fordham University School of Law
December 2, 2009
Wake Forest Law Review, Forthcoming
Harvard Public Law Working Paper No. 10-09
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.
Number of Pages in PDF File: 37
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
Date posted: December 4, 2009 ; Last revised: October 13, 2010