Proposed Motion to Amend Comment j to § 7

of the Restatement of the Law

Torts: Liability for Physical Harm

Proposed Final Draft No. 1 (April 6, 2005)

Benjamin C. Zipursky, New York, New York

May 13, 2005

The motion is:

To replace Comment j to § 7 with the text proposed below

or, in the alternative, to refer Comment j of § 7 back to the Reporters for revision that accommodates the concerns expressed herein.

Introduction

Comment j concludes “Despite frequent use of foreseeability in no-duty determinations, this Restatement disapproves that practice and limits no-duty rulings to articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.”

This conclusion, like the text that it summarizes, suggests two different — and quite reasonable — concerns: one pertains to courts’ practice of disguising foreseeability-based no-breach determinations as no-duty determinations, and usurping the jury’s traditional function. The other pertains to the failure of courts to explain adequately and openly their reasons for no-duty determinations.

What gets lost in the effort to make both points is the ability to explain why courts properly utilize foreseeability determinations within the realm of the duty element. It is therefore not surprising that the current Draft rejects the use of foreseeability in duty. However, such a rejection is completely out of step with virtually all leading authorities and courts, whether it be Justice Brett in Heaven v. Pender, Judge Cardozo in MacPherson v. Buick, or the California Supreme Court in Tarasoff; and virtually all commentators from Prosser to Posner.

In place of the current Comment j, but drafted with an effort to adhere to the Reporters’ own conception of duty and their own policy concerns about foreseeability, the following text is proposed:

Comment j. Foreseeability

The proper role of foreseeability in duty has caused a great deal of confusion. Courts frequently err by conducting a foreseeability analysis of a sort appropriate to a juror’s consideration of breach, when what is before them is a question of law concerning duty. The error is serious because it usurps the province of the jury. Nevertheless, the error is easy to make, because negligence doctrine typically includes “foreseeability” both as part of the breach question and as part of the duty question, and most jurisdictions do not provide clear guidance on how the inquiry differs for the two elements.

This Restatement takes the view that foreseeability is a breach issue insofar as it concerns the issue of how foreseeable harm would have been to a reasonable person situated as the defendant in the case. The foreseeability of harm from the (particular) defendant’s perspective is thus a breach question that is to be decided by the jury, subject to the usual rule permitting a judge to take the question from the jury if the evidence proffered (or facts pleaded) is so one-sided that any reasonable juror would have to find that the harm to plaintiff was not reasonably foreseeable. In issuing the latter sort of ruling, a court is relying on the utter absence of foreseeability as a ground for concluding that no breach occurred as a matter of law.

With respect to the duty element, the extent to which a category of defendant can be expected to foresee physical harm to a category of plaintiff should be considered, if at all, only as part of the inquiry into whether special considerations of policy or principle warrant a departure from the presumption of duty in physical harm cases created by Section 6. Even among the exceptional cases calling for an inquiry into special issues of principle and policy, relative foreseeability often will be of lesser relevance to duty analysis. For example, if the ground for adopting a limited-duty or no-duty rule concerns the difficulty of administering such cases were they allowed to go forward, or public policy concerns, such as interference with the prerogatives and actions of coordinate branches of government, courts’ bases for declining to recognize a duty may be justifiable notwithstanding that harm to plaintiff is reasonably foreseeable. Even in these cases (e.g., firefighter’s rule), the foreseeability of harm to plaintiffs with respect to the general category may properly figure as a counterweight to the asserted concerns of policy or principle putatively justifying the no-duty holding, and it would therefore be more accurate, rather than denying the role of foreseeability altogether in such cases, to say that foreseeability has more of a background than a foreground role.

However, in contexts that involve limited duties, or in which the default rule is a rule of no-duty (such as nonfeasance), foreseeability commonly plays a significant foreground role in judicial analyses of duty, and properly so. As noted above, in these contexts, the foreseeability question concerns the extent to which a category of defendant ought to have anticipated harm to some category of plaintiff. The fact that a defendant falls within a category of actors who are in a particularly good position to anticipate physical harms to others resulting from their actions has historically been a significant factor in court decisions expanding the domain of duty in areas where it had once been limited. Manufacturers’ duty of care to product users not in privity, and psychotherapists’ duty to potential victims of dangerous patients are two of the most famous examples of this use of foreseeability analysis. Conversely, where the question is whether to expand the domain of duty in some context, the inability or relatively modest ability of a category of defendant reasonably to foresee harm to a person such as the plaintiff has frequently figured as a reason against expansion of duty. Thus, for example, landowners continue to have limited duties to adult trespassers in part because trespassers are, as a class, relatively unforeseeable.

Illustration 1: The highest court of jurisdiction J has held that a landlord owes a duty of care to tenants to provide reasonable security measures (including, in prior cases, apartment locks in working order and well-lit common areas and parking lots). Adult Barbara is a tenant in Landlord Lewis’ building. Barbara is assaulted on the rooftop of the apartment building by five fourteen-year-old boys who found their way to the rooftop via the building’s external fire escape. Barbara sues Lewis, arguing that the fire escape should have been inaccessible from ground level, and the rooftop should have had an emergency telephone. Lewis argues that a rooftop attack was quite unforeseeable and that an attack by fourteen-year-old boys who accessed the roof by the fire escape was unforeseeable, and that, therefore, the court should decide that Lewis had no duty to protect Barbara against such an attack. The court should reject Lewis’ argument as a procedural matter, because duty, as a legal issue, is established in this scenario and foreseeability or unforeseeability of this sort of risk is a matter of breach, to be decided by the jury.

Illustration 2: Ten-year-old Frank is walking on a sidewalk carrying a fishing rod over his shoulder. Jane’s chocolate factory has decorated its truck with tissue paper hearts for Valentine’s Day, and is driving on the street adjacent to the sidewalk. Unbeknownst to Jane’s or Frank, a small piece of tissue paper is torn of the truck by Frank’s fishing rod and sticks to the end of the rod. Five minutes later, the tissue-paper stuck to the end of the rod touches the underside of a kerosene lamp on the street Frank is walking on, causing a fire that injures Frank. Based on information provided by pedestrians who witnessed this train of events, Frank’s lawyer sues Jane’s for negligently attaching flammable tissue paper to its truck, causing physical harm to Frank. Jane’s moves for summary judgment, arguing that the low foreseeability of this sequence of events justifies a no-duty holding. The court should reject the no-duty argument because there is clearly a duty owed by Jane’s to take reasonable care in operating its business so as to avoid injuring persons such as Frank; only the breach question is open. However, the court may determine that the foreseeability of harm associated with mounting tissue paper on a truck is so low, on the facts put forward, that no reasonable juror could find that Jane’s had acted carelessly. In such a case, unforeseeability might warrant judgment as a matter of law for the defendant, but only because of the exceptionally weak case on breach, not because of the absence of a duty of care.

Illustration 3: Sally lives on the thirty-third floor of her high-rise apartment building, and she frequently enjoys holding parties in which she plays fortune teller and fills the apartment with incense and burning candles. After one of these parties, she goes to bed without putting out any of the candles, negligently setting the building afire. The fire department rushes to the scene, and manages to evacuate of the residents. However, plaintiff firefighters James, Janet, and John are all severely burned. They sue Sally, who argues that the jurisdiction should apply the firefighter’s rule, which dictates that there is no liability to the firefighters, because (among other reasons) recognizing a cause of action here would lead to great liability for the government and would place fire department policy in courts’ hands. Assuming that the court is genuinely deciding this as a duty issue (rather than simply following precedent) it will need to decide whether to bar liability notwithstanding the quite high foreseeability of injury to firefighters that would be available to a reasonable defendant who might be engaging in fire-risking activities. While the court need not affirmatively find that there is foreseeability in order to recognize a duty (which is there by default under § 7), and while “unforeseeability” is not the basis of the no-duty motion, the policy bases for the no-duty motion ought to be evaluated in a broader context, which includes recognition of the high foreseeability of injury to firefighters from the position of a negligent fire-starter.

Illustration 4: Jack is shot by criminal assailant Chris with a handgun manufactured by Purple Magnum. Purple Magnum had contracted with Distributor Durst, who sold to Griffin’s Gunshop, who sold to criminal gun trafficker Tim, who sold the gun to Chris. Jack sues Purple Magnum for negligently failing to exert control over Durst’s and Griffin’s distribution practices. Purple Magnum argues that there is no duty to take precautions against or prevent or control Chris’ conduct toward Jack, in part because it is not in a position to foresee Chris’ actions. In this case, the degree to which a class of defendants — gun manufacturers — can be expected to foresee harm to a class of victims, as well as the conduct of several classes of intermediate actors whose conduct the defendants are being asked to monitor and influence, is relevant to the court’s determination of whether to recognize a duty. First, because this is a special duty scenario involving the prevention of injurious conduct by third parties, and is a type of case in which duties have not previously been recognized, it is not a standard § 7 duty case. Instead, issues of policy and principle come into play. Issues of principle — such as whether it is cogent to understand gun manufacturers as morally responsible for these sorts of injuries — turn in part on whether they can or should foresee that gun distribution will follow certain patterns if they sell to certain distributors. Issues of policy, such as what is the most efficacious means of reducing gun-related violence — will also turn, in part, on the degree of foreseeability at various levels of market participation.

* * * *

The proposed Comment is superior to Comment j as it stands for several reasons. First, and most importantly, it recognizes the reality of black-letter law in all jurisdictions that foreseeability does figure as an important factor in duty considerations; Comment j, as it stands, does not admit this basic fact. Second, it explains more clearly than the current Comment j why it is incorrect to call no-breach-as-a-matter of law rulings “no-duty” rulings, and why this makes a difference procedurally. Third, it accepts the idea, embraced by the current Comment, that “no-duty” holdings in physical harm cases ought to be justified in terms of special considerations of principle and policy. Unlike the current Comment, however, it also accepts that the considerations of principle and policy will sometimes involve judgments about foreseeability. It thereby accepts the critique in the current Comment, while nevertheless accommodating the idea that foreseeability sometimes does have a proper rule in duty determinations. Fourth, it gives courts clearer guidance to distinguish breach-like foreseeability questions from duty-like foreseeability questions: the former relate to the situations of the parties in a particular case, the latter relate to categories of parties and types of harm. Fifth, it utilizes the framework created by the § 7 default of duty for ordinary physical harm — as opposed to affirmative duty and special duty scenarios — to suggest that foreseeability considerations as to duty will normally be inapplicable in straight § 7 types of cases (because duty is almost always established), while setting forth the territory (affirmative duty and special duty scenarios) where duty issues are more alive, and therefore foreseeability figures more prominently. Sixth, it accurately conveys that foreseeability in duty frequently figures more as a sword, than as a shield. Finally, it illustrates these very difficult concepts with realistic and timely examples, including the sorts of examples where defendants are sure to try unforeseeability as a route to no duty, and it provides plausible guidance about which of these routes are legitimate and which are not.