Courts Using Foreseeability To Determine Whether To Modify or Limit the Ordinary Duty of Care Risk Reversal

The Restatement (Third) of Torts provides that an actor ordinarily has a duty to exercise ordinary care when the actor’s conduct creates a risk of physical harm, but that in exceptional cases, when policy principles warrant denying or limiting liability in a particular class of cases, a court may decide that the actor has no duty or that the ordinary duty of care requires modification.  When courts inject foreseeability into the analysis of whether the ordinary duty of care should be modified or limited, they risk reversal.

Last week, for example, the Supreme Court of New Mexico reversed a lower appellate court’s analysis of whether a legal duty existed because the lower court relied on fact-specific foreseeability considerations in determining whether a shopping center had a legal duty to protect shoppers inside the building from criminally reckless drivers in the mall’s parking lots.

The state’s highest court, relying on support from the comments to the Restatement, cautioned that foreseeability determinations should be reserved for juries because they require the jury’s common sense, common experiences, and the consideration of community behavioral norms:  “courts must articulate specific policy reasons, unrelated to foreseeability considerations, when deciding whether a defendant does or does not have a legal duty or that an existing duty should be limited.”  As the Restatement provides, the specific policy reasons for the elimination or limitation of the ordinary duty of care “do not depend on the foreseeability of harm based on the specific facts of a case.  They should be articulated directly without obscuring references to foreseeability.”  Foreseeability generally informs the determination of whether an existing duty is breached, not whether the legal duty of ordinary care should be modified or limited.