Foreseeability in Breach, Duty and Proximate Cause

Foreseeability in negligence law is a persistent source of frustration to students and scholars because it pops up in three of the four elements of the tort: duty, breach, and proximate cause. The forthcoming Restatement (Third) of Torts: Liability for Physical and Emotional Harm has something valuable to say about foreseeability in each. The Restatement Reporters rightly criticize some courts for merging foreseeability in duty and breach and thereby usurping the jury’s prerogative to evaluate the breach issue. And they offer a nuanced and doctrinally powerful “scope-of-the-risk” standard to complement foreseeability in the context of proximate cause (now categorized under “scope of liability”). The Reporters’ treatment of foreseeability is emblematic of commendable goals of the project: guide courts to be less invasive of the jury on breach, and provide lawyers and judges analytical tools that will help discipline causation inquiries. Yet there are serious problems with the Reporters’ treatment of foreseeability: their effort to eliminate foreseeability from duty is unjustifiable; their attempt to squeeze foreseeability of breach into the Hand formula’s “P” component is forced; and their rationale for moving to a scope-of-the-risk conception of proximate cause is scant. The article concludes on a constructive note, offering a theoretical justification for scope-of-the-risk standard of proximate cause.