Almost a Century and Three Restatements after Green It’s Time to Admit and Remedy the Nonsense of Negligence

Abstract

The tort of negligence is flawed and empirically unsupportable. Currently negligence requires a finding of unreasonable conduct. In modern negligence law and in the recent restatement Third of Torts the existence of unreasonable conduct is established using a foreseeability based analysis. Another condition precedent for negligence to be actionable is a finding of proximate cause, the existence of which is also dependent on a foreseeability based analysis. The history of the tort demonstrates unreasonable conduct is a means of expanding liability and proximate causation restricts liability. Yet, despite the opposing aims of each element both are based on a foreseeability dependent analytical fulcrum. As a result the use of foreseeability both in the unreasonable conduct prong and in the proximate cause prong renders these supposedly different elements of negligence indistinguishable. Yet scholars, courts and practitioners insist they must be different because some elements of negligence are determined as a matter of law and others as a matter of fact. Despite the insistence on difference there is no empirically supportable way to distinguish the various elements of the tort and no way to define the appropriate role foreseeability should play in establishing each element of negligence. Modern scholarship ignores this problem identified by legal realists as far back as 1923. Instead the scholarship is replete with illusory attempts to distinguish the appropriate role foreseeability plays in the establishing the different elements of negligence. None of these academic and judicial distinctions, including the very recent restatement Third of Torts, survives even cursory examination or hold up in actual litigation. The real solution is a reformulation of negligence based in part on the pre-Holmesian structure of the tort while accepting foreseeability can only mean one thing as it is applied across the spectrum of negligence elements.