ABSTRACT
This Article provides empirical support for the heavily debated role of foreseeability in tort law. In Palsgraf v Long Island, Judge Cardozo argued that foreseeability is a necessary requirement to establish duty while Judge Andrews dissented on the grounds that duty describes the general relationship that exists in society and that foreseeability should be a consideration for proximate cause.
Most consider this debate meaningful as dictating when foreseeability is considered – duty vs proximate cause – will determine who considers foreseeability – judge vs jury. While conventional thinking suggests that a Cardozo view of duty implies that judges will be the arbiter of foreseeability, many states have departed from this thinking and assigned juries as the arbiter of foreseeability independent of the duty vs. proximate cause debate. In this article, I test the effect of foreseeability consideration by using variation in legal precedent in foreseeability by state. Borrowing from the tort reform literature, I consider three potential outcomes that have been shown to matter to changes in tort law: accidental deaths, infant mortality rates, and torts case starts.
To properly identify the effect of changes to foreseeability consideration on these outcomes, I employ the common empirical strategy of two-way fixed effects and Mundlak regressions which represents a new advancement in the empirical literature.
I find little evidence that when foreseeability is considered – duty vs proximate cause – matters, but who considers foreseeability does matter. States in which judges are the arbiter of foreseeability experience an increase in accidental deaths and an increase in the infant mortality rate.
Edwards, Griffin Sims, An Empirical Assessment of the Foreseeability Test (February 27, 2024). Florida Law Review, Forthcoming.
Leave a Reply