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91 Mississippi Law Journal 333 (2022)


The Restatement (Third) of Torts: Liability for Physical and Emotional Harm (the “Third Restatement”) was adopted by the American Law Institute in 2010. The approach taken by the Third Restatement to negligence law excludes foreseeability from the duty determination and places it squarely as a relevant factor in the breach issue; it adopts the “but-for” standard for causation; and rejects proximate cause terminology, instead utilizing a scope of liability approach in which the key question is whether the harms that occurred were of the same general type that made the actor’s conduct tortious. Removal of foreseeability from the duty determination is intended to provide a more principled approach to the duty issue, leaving policy decisions for the court and foreseeability issues for the jury. The Third Restatement makes it clear that it is the jury’s function to determine the facts and that if “reasonable minds can differ as to whether the conduct lacks reasonable care, it is the function of the jury to make that determination.”

This Article strums the divergent strings of foreseeability, to see how courts have dealt with that issue in the shadow of the Third Restatement. Part I covers rejections of the Third Restatement’s position on duty. Part II covers cases where courts have crossed paths with the Third Restatement but without adopting it. Part III focuses on the issues that arise when courts continue to rely on foreseeability in duty determinations. Part IV notes cases that track the Third Restatement’s position. Part V covers Minnesota’s approach to the issue, primarily to illustrate the impact of a liberal stance on the issue of whether summary judgment should be adopted in cases where foreseeability in the duty determination is disputed, a position that edges closer to the Third Restatement’s aspiration of a more appropriate judge-jury balance in negligence cases. Part VI covers jurisdictions adopting the Third Restatement’s approach to duty.

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