Purging Foreseeability

For those responsible for understanding tort doctrine, the concept of foreseeability is a scourge, and its role in negligence cases is a vexing, crisscrossed morass. Indeed, one torts professor teaches that foreseeability might as well be called "strawberry shortcake," having been bent, muddled, and co-opted to such a degree that it has lost any real meaning. Foreseeability's role in the element of "duty" in negligence is especially problematic. Courts have long tied the existence of a duty- that is, whether an allegedly negligent defendant owed an obligation of care under the circumstances-to foreseeability.

The more foreseeable the risk, the resulting injury, the manner of injury, or the person injured, so the reasoning goes, the greater the reason to impose a duty on the defendant to have acted with care to avoid such risk or injury. This is perhaps a reasonable approach at first blush. But because duty is the sole element of negligence not left in the first instance to the jury, duty-and hence, foreseeability-has become the primary source of judicial power to weed out cases deemed by a judge to be unworthy. Regardless of one's general view regarding the proper breadth of judges' gatekeeping power in negligence cases, foreseeability's prominence in determinations of duty is problematic for two reasons.

First, judges' use of foreseeability as a means of deciding duty has a pernicious effect on the rule of law. At the very least, foreseeability's indeterminacy leads judges to treat like cases differently and different cases alike. If foreseeability truly is "strawberry shortcake," then it may be little more than a surrogate for unbounded judicial discretion.