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.