Oh, say can you see?

OH, SAY CAN YOU FORESEE? When should we hold someone responsible for harm to another? The courts face this question constantly, and over the years they have struggled to give consistent answers. One approach that has been tried and tested, but not proven infallible, is the so-called "foreseeability" rule. In simple terms, the rule says that one person whose conduct leads to another person's injury is responsible if, in doing what he did, he could have or should have, foreseen the danger. This rule seems attractive until one realizes that, with a large injection of imagination, one can always foresee that a given act might produce the actual injury. For this reason, the California courts have begun to retreat from liberal use of the foreseeability rule and have tried, instead, to determine whether in any given case the actor owed some duty to protect the injured party from harm. Approaching the problem from the standpoint of 'duty' involves moral principles, while analyzing cause and effect under the foreseeability rule does not. A recent case illustrates the recent trend away from use of the foreseeability rule as a means of extending liability. In a case named Margaret W. v. Kelley R. (the family names being kept anonymous) the court was faced with a conflict between a terrible harm -- the brutal rape of a 15-year-old girl -- and assessing liability against a person who neither committed the crime nor knew the persons who had committed the crime. The facts, in grossly simplified terms, were these: Kelley had a 15-year-old daughter named Brianna. Margaret was Brianna's friend. They planned a sleepover party at Kelley's home. The girls had similar parties in the past. But Kelley had her own plans for that evening. She intended to go out to a Christmas party. Kelley told her daughter to let her guests and their parents know she would not be around during evening. Kelley also laid down some ground rules -- no alcohol and no other boys or girls could enter the home. Kelley then left for the evening. The girls promptly started to break the rules. They got drunk, and they invited some boys into the home. A number of telephone calls took place. Kelley learned that her daughter had become drunk, but she apparently did not know about the arrival of the boys and she certainly did not know who they were. At some point during the evening Margaret and the boys left Kelley's home and went to the home of one of the boys. The rape occurred at the boy's home. Margaret, presumably through her parents, sued Kelley. Margaret accused Kelley of failing to prevent her rape. She argued that, as a guest in Kelly's home, Kelley had established a "special relationship" with her and therefore should have protected her against foreseeable harm. In addition, Margaret argued that Kelley had volunteered to protect her and thereby had taken on a duty of care.In rejecting those arguments, the appellate court made short shrift of the notion that Kelley had taken on a duty of care. Inviting a teenage girl to her home did not equate to offering protective services, the court ruled. The court also put the hatchet to the foreseeability rule. The court reasoned that the real question was whether Kelley had acted properly given what she actually knew about Margaret's situation as opposed to what she might have known or could have found out or should have found out. The difference is enormous. It is the difference between predicting the actual crime that occurred in all its details and predicting a general type of crime which might occur without knowing how, when, or by whom. It is a difference, in short, between 'foreseeing' that a certain boy would rape Margaret at his home after she had become drunk and left Kelley's home and 'foreseeing' that a teenage girl might become drunk and eventually be raped by some boy.Changes to the foreseeability rule really involve changes to social relationships. In a broad range situations the duty of one person to protect another from harm is not clear-cut. If everyone were fully responsible for everyone else's well-being, we would have little time to devote ourselves to what matters most to ourselves. On the other hand, a society in which no one assumes the slightest responsibility for another's well-being would hardly represent a society at all; it would more nearly resemble universal warfare. Because in this country we often place these questions before the courts, the courts are forced to try to adjust these social relationships. The adjustments are, by their nature, imperfect.

But what places the courts in this awkward situation is, in my view, a too prevalent misconception that, whenever someone is hurt, someone else must pay. That is untrue. Some grief just lands on us and then sits where it has landed. We should not look to the law to shift all of our loads.