68 Pages Posted: 14 Nov 2005
This article is the second phase of a two-part endeavor to assess the use of foreseeability in negligence law and to argue against its ever-expanding role in the element of duty. The first article (Purging Foreseeability, 58 VAND. L. REV. (forthcoming April 2005)) urged courts to adopt the general duty provisions of the proposed Restatement (Third) of Torts - provisions that implicitly would purge duty of foreseeability-based considerations. As I explained in that article, ridding duty of foreseeability would result in a number of benefits, the most significant of which is that the necessarily fact-dependant issue of foreseeability would rest, in the first instance, with the jury rather than the judge.
There has been resistance on a number of fronts to the Restatement's attempts to rid duty of foreseeability. The most serious opposition seems to arise from a jurisprudential view that foreseeability simply belongs there. Courts and scholars often theorize duty such that foreseeability is a natural conceptual fit, and they explain foreseeability in ways that tie it necessarily to duty. This article refutes these conceptualizations of duty and foreseeability. It urges that the conceptual work done by foreseeability also might fit wholly and seamlessly within the elements of breach and proximate cause. In proving that foreseeability's conceptual fit is thus indeterminate, the article aims to refocus the debate on the only determinative factor - whether court or jury is the better arbiter of foreseeability, a matter that courts are reluctant to discuss and scholars have largely ignored.
Suggested Citation: Suggested Citation