Reconstructing Foreseeability

Abstract

This Article is the second of a two-part endeavor assessing the use of foreseeability in negligence law, and arguing against its everexpanding role in the element of duty. The first article, Purging Foreseeability, urged courts to adopt the general duty provisions of the pro. posed Restatement (Third) of Torts—provisions that would purge duty of foreseeability-based considerations. Courts and scholars have resisted the Restatement's attempts to rid duty of foreseeability out of a jurisprudential view that foreseeability simply "belongs" there. This Article urges that the conceptual work clone by foreseeability also might fit wholly and seamlessly within the elements of breach and proximate cause. In proving that foreseeability's conceptual fit is thus indeterminate, the Article aims to refocus the debate on whether the court or the jury is the better arbiter of foreseeability—a matter that courts are reluctant to discuss and scholars have largely ignored.