The Man Who Didn’t Fall

On the matter of negligence in personal injury cases the first draft of the Restatement (Third) of Torts eliminated the element of duty altogether. After an uproar the authors eviscerated duty and stuck back in what was left. Ultimately, while they failed to restate the law as it pertains to duty they did manage to restate the era of unjustified fears and risk aversion that has persisted since about the time the Restatement (Second) was published.

The Restatement (Third) takes the position that case law as well as scholarship pertaining to duty is largely incoherent. The essence of the claim is that limits to liability couched in terms of relationships or foreseeability are nothing but ad hoc justifications for taking the real question, whether defendant breached a duty of reasonable care owed to society, out of the hands of the jury where it belongs. Thus, dismissing as insupportable judicial inquiries about the connectedness of plaintiff and defendant (the relational approach) as well as those as to the proximity of cause and effect (proximate cause), the Restatement (Third) of Torts, Liability for Physical and Emotional Harm Section 7(a) reads "[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm." It goes on to add that save in "exceptional cases" judges "need not concern themselves with the existence or content of this ordinary duty." In other words, once it has been established that a defendant created a risk the court’s work regarding duty is finished and the question of whether defendant’s conduct was reasonable is exclusively for the jury to decide.

That’s a very long way from either position taken in Palsgraf v. The Long Island Railroad Company . On one side Chief Justice Cardozo for the majority wrote "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imparts relation; it is risk to another or to others within the range of apprehension". On the other Justice Andrews dissented writing both that "[e]very one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others" and yet that "there is one limitation (on liability). The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former." He continues "[w]hat we do mean by the word "proximate" is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point."

Cardozo marks the boundary of liability by a circle of close if fleeting relationships while Andrews bounds it within a circle of causes that are close to the injury producing event. Whether measured by the remoteness of the relationship or of the cause from effect both sides agreed that there was a limit to the duty of reasonableness even when a risk has been created. It’s that idea of a limit on the duty of reasonableness that was cut out of duty in the Restatement (Third). Consequently foreseeability, the catchall for the various efforts to limit the scope of the duty of reasonable care, is said to have been purged from duty.

The objection that the collection of limitations on the duty of reasonable care (whether Cardozo’s or Andrews’ or the many iterations based on foreseeability) is incoherent is based, I suspect, on an understandable misunderstanding of what these jurists are trying to say. What I think they’ve been trying to say is that risk is an inevitable part of life and that some risks are so small that liability isn’t warranted even if an injury should follow their creation.

But foreseeability doesn’t sound much like risk. Isn’t it about predicting the future; about foretelling future events based on what’s already known? Yes, but that ex ante calculation of the effects that likely follow causes is what risk is all about.

But why limit liability by the degree of risk? And if a boundary is drawn how can it be done other than arbitrarily? Isn’t it better that we follow the Precautionary Principle? Aren’t we Addicted to Risk? Wouldn’t the world be a better place if we quit taking risks?

To answer those questions let’s go back to the railroad guards who created the risk that caused Ms Palsgraf’s injury. As a train began to leave the station two men ran to catch it. One safely boarded but the other, "carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails." What might the future have looked like had the guards taken the time to consider all of the possibilities that might follow from their effort to keep the man from falling? What might the future have held for him assuming gravity acted upon him as it did upon his package? And what about the rest of us, if inaction were the only way for our fellow citizens to avoid being hauled into court?

For several decades now the merchants of fear have been telling us that everything we thought was progress is instead the cause of human suffering. Vaccines? Autism or worse. Electricity? Electromagnetic fields, migraines, MS, cancer. Internal combustion engines? Global warming, pm2.5, etc. Plastics? Endocrine disruption, heart attacks, cancer. Pesticides (e.g. DDT) and herbicides? Sterility, cognitive deficits, cancer, overpopulation. Cars? Runaway acceleration, rollovers, fireballs. Computers? ADHD, too many choices, too little control. Shouldn’t we have waited until all the kinks were worked out before acting? Click on the vaccines link in this paragraph and also consider the price of fear of regret as expressed by Benjamin Franklin.

It is, I’m afraid, a duty to stop and not act until you’ve considered all the possible consequences of every action, however improbable, that the Restatement (Third) ultimately embraces. It is an embrace of the Precautionary Principle – an embrace therefore of a political viewpoint; not a restatement of the law regarding duty.

When you think of foreseeability as risk you see what the law really has to say about the duty of reasonable care and the analysis of any claim that it was breached. What it truly says is that the court, taking an ex ante perspective, is to decide whether the risk created was one for which, if found unreasonable and causative by a jury, liability may fairly be imposed. Thereafter, for any act amenable to liability, it’s for the jury to express their community’s tolerance for risk. Risk, or foreseeability, is thus sensibly in two places. First in the law where the limits of liability are drawn and thereafter with the fact finder who considers the reasonableness of the conduct given the context in which the various factors played out.

Is there some bright line that can be drawn? Not always though we’re certainly arguing down here that in cases where good quantitative risk assessment is available it can be. For example, in one case involving a minute exposure to a carcinogen we can take the plaintiff expert’s epidemiology studies and show that the exposure his industrial hygienist calculated produced, at most, a 1 in 13 million risk of death. Compared to other known risks you’re much more likely to slip and fatally hit your head on the toilet than to die from the exposure of which plaintiff complains. Our argument is that it make sense then to have the law, i.e. the court, set some reasonable outer limit on liability – perhaps at the 1 in 1 million level. Otherwise we either open up toilet makers and everyone else to ruinous liability for creating risks running towards the impossible end of the spectrum or we without any sound reason decide that some one in a million risks of death are fine while others aren’t.

Unsurprisingly it didn’t take long for the simplicity and predictability arguments advanced in support of the new and hollow version of risk to run off the rails. Consider Feld v. Borkowski. Iowa’s supreme court eagerly adopted the new conception of duty in 2009 (see Thompson v. Kaczinski) only to start tortuously creating exceptions to it less than a year later. (Slow pitch softball is a contact sport? Who knew? By the way, with all due deference to the Creighton coach I suspect angular momentum and early application of torque rather than recklessness answers the question). Rather than clarifying duty I’m afraid the Restatement (Third) has only created a risk of even more obscure and incoherent formulations of exceptions so as to avoid the consequences of duty without limit.

Anyway, whatever the facts and whatever the content of duty courts will in the end have to recognize the wisdom of another famous American, Henry David Thoreau, who wrote "A man sits as many risks as he runs." And that "if a man is alive, there is always a danger that he may die …" It’s exactly that essence of the inevitability of risk that the courts, if not the Restatement (Third), have been trying to express when they talk about duty.